TITLE 7—AGRICULTURE
Editorial Notes
CHAPTER 1—COMMODITY EXCHANGES
§1. Short title
This chapter may be cited as the "Commodity Exchange Act."
(Sept. 21, 1922, ch. 369, §1, 42 Stat. 998; June 15, 1936, ch. 545, §1, 49 Stat. 1491.)
Editorial Notes
Prior Provisions
This chapter superseded act Aug. 24, 1921, ch. 86, 42 Stat. 187, known as "The Future Trading Act," which act was declared unconstitutional, at least in part, in Hill v. Wallace, Ill. 1922, 42 S.Ct. 453, 259 U.S. 44, 66 L.Ed. 822. Section 3 of that act was found unconstitutional as imposing a penalty in Trusler v. Crooks, Mo. 1926, 46 S.Ct. 165, 269 U.S. 475, 70 L.Ed. 365.
Amendments
1936—Act June 15, 1936, substituted "Commodity Exchange Act" for "The Grain Futures Act".
Statutory Notes and Related Subsidiaries
Effective Date of 1936 Amendment
Act June 15, 1936, ch. 545, §13, 49 Stat. 1501, provided that: "All provisions of this Act [see Tables for classification] authorizing the registration of futures commission merchants and floor brokers, the fixing of fees and charges therefor, the promulgation of rules, regulations and orders, and the holding of hearings precedent to the promulgation of rules, regulations, and orders shall be effective immediately. All other provisions of this Act shall take effect ninety days after the enactment of this Act [June 15, 1936]."
Short Title of 2015 Amendment
Pub. L. 114–1, title III, §301, Jan. 12, 2015, 129 Stat. 28, provided that: "This title [amending section 6s of this title and section 78o–10 of Title 15, Commerce and Trade, and enacting provisions set out as a note under section 6s of this title] may be cited as the 'Business Risk Mitigation and Price Stabilization Act of 2015'."
Short Title of 2008 Amendment
Pub. L. 110–234, title XIII, §13001, May 22, 2008, 122 Stat. 1427, and Pub. L. 110–246, §4(a), title XIII, §13001, June 18, 2008, 122 Stat. 1664, 2189, provided that: "This title [amending sections 1a, 2, 6a, 6b, 6f, 6g, 6i, 6k, 6o–1, 6q, 7a, 7a–2, 7b, 8, 9, 12, 13, 13a, 13a–1, 16, 18, 21, and 25 of this title and enacting provisions set out as notes under section 2 of this title] may be cited as the 'CFTC Reauthorization Act of 2008'."
[Pub. L. 110–234 and Pub. L. 110–246 enacted identical provisions. Pub. L. 110–234 was repealed by section 4(a) of Pub. L. 110–246, set out as a note under section 8701 of this title.]
Short Title of 2000 Amendment
Pub. L. 106–554, §1(a)(5) [§1(a)], Dec. 21, 2000, 114 Stat. 2763, 2763A-365, provided that: "This Act [H.R. 5660, as enacted by section 1(a)(5) of Pub. L. 106–554, enacting sections 5, 6o–1, 7 to 7a–3, 7b–1, 7b–2, 9c, and 27 to 27f of this title, sections 781 to 784 of Title 11, Bankruptcy, sections 339a, 4421, and 4422 of Title 12, Banks and Banking, and sections 77b–1 and 78c–1 of Title 15, Commerce and Trade, amending sections 1a, 2, 2a, 4, 4a, 6 to 6m, 6p, 7a–2, 7b, 8 to 9a, 10a, 11, 12, 12a to 12c, 13, 13a to 13b, 16, 18 to 21, and 25 of this title, sections 101, 103, 109, and 761 of Title 11, sections 624 and 4402 of Title 12, and sections 77b, 77c, 77l, 77q, 78c, 78f, 78g, 78i, 78j, 78k–1, 78l, 78o, 78o–3, 78p, 78q, 78q–1, 78s, 78t, 78u, 78u–1, 78bb, 78ee, 78ccc, 78lll, 80a–2, 80b–2, and 80b–3 of Title 15, repealing sections 5, 7, 7a, and 12e of this title, and enacting provisions set out as notes under this section, section 2 of this title, and section 78c of Title 15] may be cited as the 'Commodity Futures Modernization Act of 2000'."
Pub. L. 106–554, §1(a)(5) [title IV, §401], Dec. 21, 2000, 114 Stat. 2763, 2763A-457, provided that: "This title [title IV of H.R. 5660, as enacted by section 1(a)(5) of Pub. L. 106–554, enacting sections 27 to 27f of this title] may be cited as the 'Legal Certainty for Bank Products Act of 2000'."
Short Title of 1995 Amendment
Pub. L. 104–9, §1, Apr. 21, 1995, 109 Stat. 154, provided that: "This Act [amending section 16 of this title] may be cited as the 'CFTC Reauthorization Act of 1995'."
Short Title of 1992 Amendment
Pub. L. 102–546, §1(a), Oct. 28, 1992, 106 Stat. 3590, provided that: "This Act [enacting sections 1a and 12e of this title, amending sections 2, 2a, 4, 4a, 6 to 6c, 6e to 6g, 6j, 6p, 7 to 9a, 10a, 12, 12a, 12c, 13 to 13c, 15, 16, 18, 19, 21, and 25 of this title, repealing section 26 of this title, enacting provisions set out as notes under sections 1a, 4a, 6c, 6e, 6j, 6p, 7a, 13, 16a, 21, and 22 of this title, and repealing provisions set out as a note under section 4a of this title] may be cited as the 'Futures Trading Practices Act of 1992'."
Short Title of 1986 Amendment
Pub. L. 99–641, §1, Nov. 10, 1986, 100 Stat. 3556, provided that: "This Act [enacting section 2271a of this title, amending sections 2a, 6b, 6c, 7a, 13, 13a–1, 15, 16, 21, 23, 74, 87b, 1444, 1445b–3, and 1445c–2 of this title, sections 590h and 3831 of Title 16, Conservation, sections 606, 609, 621, 671, and 676 of Title 21, Food and Drugs, repealing section 14 of this title, and enacting provisions set out as notes under sections 20, 71, 76, 87b, and 2271a of this title and sections 601, 606, 609, 621, 671, and 676 of Title 21] may be cited as the 'Futures Trading Act of 1986'."
Short Title of 1983 Amendment
Pub. L. 97–444, §1, Jan. 11, 1983, 96 Stat. 2294, provided: "That this Act [enacting sections 2a, 12d, 25, and 26 of this title, amending sections 2, 4, 4a, 5, 6, 6a, 6c, 6d, 6f, 6g, 6h, 6i, 6k, 6m, 6n, 6o, 6p, 7a, 8, 9, 12, 12a, 13, 13a–1, 13a–2, 13c, 16, 16a, 18, 20, 21, 23, and 612c–3 of this title, and enacting provisions set out as a note under section 2 of this title] may be cited as the 'Futures Trading Act of 1982'."
Short Title of 1978 Amendment
Pub. L. 95–405, §1, Sept. 30, 1978, 92 Stat. 865, provided: "That this Act [enacting sections 13a–2, 16a, and 23 of this title, amending sections 2, 4a, 6c, 6d, 6f, 6g, 6k, 6m, 6n, 6o, 7a, 8, 12, 12a, 12c, 13, 13a, 15, 16, 18, and 21 of this title and section 6001 of Title 18, Crimes and Criminal Procedure, repealing section 15a of this title, omitting sections 12–1 to 12–3 of this title, and enacting provisions set out as notes under sections 2 and 20 of this title] may be cited as the 'Futures Trading Act of 1978'."
Short Title of 1974 Amendment
Pub. L. 93–463, §1, Oct. 23, 1974, 88 Stat. 1389, provided: "That this Act [enacting sections 4a, 6j, 6k, 6l, 6m, 6n, 6o, 6p, 9a, 12–2, 13–3, 12c, 13a–1, 15a, 18, 19, 20, 21, and 22 of this title, amending sections 2, 4, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g, 6i, 7, 7a, 7b, 8, 9, 11, 12, 12–1, 12a, 12b, 13, 13a, 13b, 13c, 15, and 16 of this title and sections 5314, 5315, 5316, and 5108 of Title 5, Government Organization and Employees, and enacting provisions set out as notes under sections 2, 4a, and 6a of this title] may be cited as the 'Commodity Futures Trading Commission Act of 1974'."
Savings Provisions for 2000 Amendment
Pub. L. 106–554, §1(a)(5) [title III, §304], Dec. 21, 2000, 114 Stat. 2763, 2763A-457, provided that: "Nothing in this Act [see Short Title of 2000 Amendment note above] or the amendments made by this Act shall be construed as finding or implying that any swap agreement is or is not a security for any purpose under the securities laws. Nothing in this Act or the amendments made by this Act shall be construed as finding or implying that any swap agreement is or is not a futures contract or commodity option for any purpose under the Commodity Exchange Act [7 U.S.C. 1 et seq.]."
Construction of 2000 Amendment
Pub. L. 106–554, §1(a)(5) [title I, §122], Dec. 21, 2000, 114 Stat. 2763, 2763A-405, provided that: "Except as expressly provided in this Act [see Short Title of 2000 Amendment note above] or an amendment made by this Act, nothing in this Act or an amendment made by this Act supersedes, affects, or otherwise limits or expands the scope and applicability of laws governing the Securities and Exchange Commission."
Purposes of 2000 Amendment
Pub. L. 106–554, §1(a)(5) [§2], Dec. 21, 2000, 114 Stat. 2763, 2763A-366, provided that:
"The purposes of this Act [see Short Title of 2000 Amendment note above] are—
"(1) to reauthorize the appropriation for the Commodity Futures Trading Commission;
"(2) to streamline and eliminate unnecessary regulation for the commodity futures exchanges and other entities regulated under the Commodity Exchange Act [7 U.S.C. 1 et seq.];
"(3) to transform the role of the Commodity Futures Trading Commission to oversight of the futures markets;
"(4) to provide a statutory and regulatory framework for allowing the trading of futures on securities;
"(5) to clarify the jurisdiction of the Commodity Futures Trading Commission over certain retail foreign exchange transactions and bucket shops that may not be otherwise regulated;
"(6) to promote innovation for futures and derivatives and to reduce systemic risk by enhancing legal certainty in the markets for certain futures and derivatives transactions;
"(7) to reduce systemic risk and provide greater stability to markets during times of market disorder by allowing the clearing of transactions in over-the-counter derivatives through appropriately regulated clearing organizations; and
"(8) to enhance the competitive position of United States financial institutions and financial markets."
Report to Congress
Pub. L. 106–554, §1(a)(5) [title I, §125], Dec. 21, 2000, 114 Stat. 2763, 2763A-411, provided that:
"(a) The Commodity Futures Trading Commission (in this section referred to as the 'Commission') shall undertake and complete a study of the Commodity Exchange Act [7 U.S.C. 1 et seq.] (in this section referred to as 'the Act') and the Commission's rules, regulations and orders governing the conduct of persons required to be registered under the Act, not later than 1 year after the date of the enactment of this Act [Dec. 21, 2000]. The study shall identify—
"(1) the core principles and interpretations of acceptable business practices that the Commission has adopted or intends to adopt to replace the provisions of the Act and the Commission's rules and regulations thereunder;
"(2) the rules and regulations that the Commission has determined must be retained and the reasons therefor;
"(3) the extent to which the Commission believes it can effect the changes identified in paragraph (1) of this subsection through its exemptive authority under section 4(c) of the Act [7 U.S.C. 6(c)]; and
"(4) the regulatory functions the Commission currently performs that can be delegated to a registered futures association (within the meaning of the Act) and the regulatory functions that the Commission has determined must be retained and the reasons therefor.
"(b) In conducting the study, the Commission shall solicit the views of the public as well as Commission registrants, registered entities, and registered futures associations (all within the meaning of the Act).
"(c) The Commission shall transmit to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate a report of the results of its study, which shall include an analysis of comments received."
§1a. Definitions
As used in this chapter:
(1) Alternative trading system
The term "alternative trading system" means an organization, association, or group of persons that—
(A) is registered as a broker or dealer pursuant to section 15(b) of the Securities Exchange Act of 1934 [15 U.S.C. 78o(b)] (except paragraph (11) thereof);
(B) performs the functions commonly performed by an exchange (as defined in section 3(a)(1) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(1)]);
(C) does not—
(i) set rules governing the conduct of subscribers other than the conduct of such subscribers' trading on the alternative trading system; or
(ii) discipline subscribers other than by exclusion from trading; and
(D) is exempt from the definition of the term "exchange" under such section 3(a)(1) [15 U.S.C. 78c(a)(1)] by rule or regulation of the Securities and Exchange Commission on terms that require compliance with regulations of its trading functions.
(2) Appropriate Federal banking agency
The term "appropriate Federal banking agency"—
(A) has the meaning given the term in section 1813 of title 12;
(B) means the Board in the case of a noninsured State bank; and
(C) is the Farm Credit Administration for farm credit system institutions.
(3) Associated person of a security-based swap dealer or major security-based swap participant
The term "associated person of a security-based swap dealer or major security-based swap participant" has the meaning given the term in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)).
(4) Associated person of a swap dealer or major swap participant
(A) In general
The term "associated person of a swap dealer or major swap participant" means a person who is associated with a swap dealer or major swap participant as a partner, officer, employee, or agent (or any person occupying a similar status or performing similar functions), in any capacity that involves—
(i) the solicitation or acceptance of swaps; or
(ii) the supervision of any person or persons so engaged.
(B) Exclusion
Other than for purposes of section 6s(b)(6) of this title, the term "associated person of a swap dealer or major swap participant" does not include any person associated with a swap dealer or major swap participant the functions of which are solely clerical or ministerial.
(5) Board
The term "Board" means the Board of Governors of the Federal Reserve System.
(6) Board of trade
The term "board of trade" means any organized exchange or other trading facility.
(7) Cleared swap
The term "cleared swap" means any swap that is, directly or indirectly, submitted to and cleared by a derivatives clearing organization registered with the Commission.
(8) Commission
The term "Commission" means the Commodity Futures Trading Commission established under section 2(a)(2) of this title.
(9) Commodity
The term "commodity" means wheat, cotton, rice, corn, oats, barley, rye, flaxseed, grain sorghums, mill feeds, butter, eggs, Solanum tuberosum (Irish potatoes), wool, wool tops, fats and oils (including lard, tallow, cottonseed oil, peanut oil, soybean oil, and all other fats and oils), cottonseed meal, cottonseed, peanuts, soybeans, soybean meal, livestock, livestock products, and frozen concentrated orange juice, and all other goods and articles, except onions (as provided by section 13–1 of this title) and motion picture box office receipts (or any index, measure, value, or data related to such receipts), and all services, rights, and interests (except motion picture box office receipts, or any index, measure, value or data related to such receipts) in which contracts for future delivery are presently or in the future dealt in.
(10) Commodity pool
(A) In general
The term "commodity pool" means any investment trust, syndicate, or similar form of enterprise operated for the purpose of trading in commodity interests, including any—
(i) commodity for future delivery, security futures product, or swap;
(ii) agreement, contract, or transaction described in section 2(c)(2)(C)(i) of this title or section 2(c)(2)(D)(i) of this title;
(iii) commodity option authorized under section 6c of this title; or
(iv) leverage transaction authorized under section 23 of this title.
(B) Further definition
The Commission, by rule or regulation, may include within, or exclude from, the term "commodity pool" any investment trust, syndicate, or similar form of enterprise if the Commission determines that the rule or regulation will effectuate the purposes of this chapter.
(11) Commodity pool operator
(A) In general
The term "commodity pool operator" means any person—
(i) engaged in a business that is of the nature of a commodity pool, investment trust, syndicate, or similar form of enterprise, and who, in connection therewith, solicits, accepts, or receives from others, funds, securities, or property, either directly or through capital contributions, the sale of stock or other forms of securities, or otherwise, for the purpose of trading in commodity interests, including any—
(I) commodity for future delivery, security futures product, or swap;
(II) agreement, contract, or transaction described in section 2(c)(2)(C)(i) of this title or section 2(c)(2)(D)(i) of this title;
(III) commodity option authorized under section 6c of this title; or
(IV) leverage transaction authorized under section 23 of this title; or
(ii) who is registered with the Commission as a commodity pool operator.
(B) Further definition
The Commission, by rule or regulation, may include within, or exclude from, the term "commodity pool operator" any person engaged in a business that is of the nature of a commodity pool, investment trust, syndicate, or similar form of enterprise if the Commission determines that the rule or regulation will effectuate the purposes of this chapter.
(12) Commodity trading advisor
(A) In general
Except as otherwise provided in this paragraph, the term "commodity trading advisor" means any person who—
(i) for compensation or profit, engages in the business of advising others, either directly or through publications, writings, or electronic media, as to the value of or the advisability of trading in—
(I) any contract of sale of a commodity for future delivery, security futures product, or swap;
(II) any agreement, contract, or transaction described in section 2(c)(2)(C)(i) of this title or section 2(c)(2)(D)(i) of this title 1
(III) any commodity option authorized under section 6c of this title; or
(IV) any leverage transaction authorized under section 23 of this title;
(ii) for compensation or profit, and as part of a regular business, issues or promulgates analyses or reports concerning any of the activities referred to in clause (i);
(iii) is registered with the Commission as a commodity trading advisor; or
(iv) the Commission, by rule or regulation, may include if the Commission determines that the rule or regulation will effectuate the purposes of this chapter.
(B) Exclusions
Subject to subparagraph (C), the term "commodity trading advisor" does not include—
(i) any bank or trust company or any person acting as an employee thereof;
(ii) any news reporter, news columnist, or news editor of the print or electronic media, or any lawyer, accountant, or teacher;
(iii) any floor broker or futures commission merchant;
(iv) the publisher or producer of any print or electronic data of general and regular dissemination, including its employees;
(v) the fiduciary of any defined benefit plan that is subject to the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1001 et seq.);
(vi) any contract market or derivatives transaction execution facility; and
(vii) such other persons not within the intent of this paragraph as the Commission may specify by rule, regulation, or order.
(C) Incidental services
Subparagraph (B) shall apply only if the furnishing of such services by persons referred to in subparagraph (B) is solely incidental to the conduct of their business or profession.
(D) Advisors
The Commission, by rule or regulation, may include within the term "commodity trading advisor", any person advising as to the value of commodities or issuing reports or analyses concerning commodities if the Commission determines that the rule or regulation will effectuate the purposes of this paragraph.
(13) Contract of sale
The term "contract of sale" includes sales, agreements of sale, and agreements to sell.
(14) Cooperative association of producers
The term "cooperative association of producers" means any cooperative association, corporate, or otherwise, not less than 75 percent in good faith owned or controlled, directly or indirectly, by producers of agricultural products and otherwise complying with sections 291 and 292 of this title, including any organization acting for a group of such associations and owned or controlled by such associations, except that business done for or with the United States, or any agency thereof, shall not be considered either member or nonmember business in determining the compliance of any such association with this chapter.
(15) Derivatives clearing organization
(A) In general
The term "derivatives clearing organization" means a clearinghouse, clearing association, clearing corporation, or similar entity, facility, system, or organization that, with respect to an agreement, contract, or transaction—
(i) enables each party to the agreement, contract, or transaction to substitute, through novation or otherwise, the credit of the derivatives clearing organization for the credit of the parties;
(ii) arranges or provides, on a multilateral basis, for the settlement or netting of obligations resulting from such agreements, contracts, or transactions executed by participants in the derivatives clearing organization; or
(iii) otherwise provides clearing services or arrangements that mutualize or transfer among participants in the derivatives clearing organization the credit risk arising from such agreements, contracts, or transactions executed by the participants.
(B) Exclusions
The term "derivatives clearing organization" does not include an entity, facility, system, or organization solely because it arranges or provides for—
(i) settlement, netting, or novation of obligations resulting from agreements, contracts, or transactions, on a bilateral basis and without a central counterparty;
(ii) settlement or netting of cash payments through an interbank payment system; or
(iii) settlement, netting, or novation of obligations resulting from a sale of a commodity in a transaction in the spot market for the commodity.
(16) Electronic trading facility
The term "electronic trading facility" means a trading facility that—
(A) operates by means of an electronic or telecommunications network; and
(B) maintains an automated audit trail of bids, offers, and the matching of orders or the execution of transactions on the facility.
(17) Eligible commercial entity
The term "eligible commercial entity" means, with respect to an agreement, contract or transaction in a commodity—
(A) an eligible contract participant described in clause (i), (ii), (v), (vii), (viii), or (ix) of paragraph (18)(A) that, in connection with its business—
(i) has a demonstrable ability, directly or through separate contractual arrangements, to make or take delivery of the underlying commodity;
(ii) incurs risks, in addition to price risk, related to the commodity; or
(iii) is a dealer that regularly provides risk management or hedging services to, or engages in market-making activities with, the foregoing entities involving transactions to purchase or sell the commodity or derivative agreements, contracts, or transactions in the commodity;
(B) an eligible contract participant, other than a natural person or an instrumentality, department, or agency of a State or local governmental entity, that—
(i) regularly enters into transactions to purchase or sell the commodity or derivative agreements, contracts, or transactions in the commodity; and
(ii) either—
(I) in the case of a collective investment vehicle whose participants include persons other than—
(aa) qualified eligible persons, as defined in Commission rule 4.7(a) (17 CFR 4.7(a));
(bb) accredited investors, as defined in Regulation D of the Securities and Exchange Commission under the Securities Act of 1933 [15 U.S.C. 77a et seq.] (17 CFR 230.501(a)), with total assets of $2,000,000; or
(cc) qualified purchasers, as defined in section 2(a)(51)(A) of the Investment Company Act of 1940 [15 U.S.C. 80a–2(a)(51)(A)];
in each case as in effect on December 21, 2000, has, or is one of a group of vehicles under common control or management having in the aggregate, $1,000,000,000 in total assets; or
(II) in the case of other persons, has, or is one of a group of persons under common control or management having in the aggregate, $100,000,000 in total assets; or
(C) such other persons as the Commission shall determine appropriate and shall designate by rule, regulation, or order.
(18) Eligible contract participant
The term "eligible contract participant" means—
(A) acting for its own account—
(i) a financial institution;
(ii) an insurance company that is regulated by a State, or that is regulated by a foreign government and is subject to comparable regulation as determined by the Commission, including a regulated subsidiary or affiliate of such an insurance company;
(iii) an investment company subject to regulation under the Investment Company Act of 1940 (15 U.S.C. 80a–1 et seq.) or a foreign person performing a similar role or function subject as such to foreign regulation (regardless of whether each investor in the investment company or the foreign person is itself an eligible contract participant);
(iv) a commodity pool that—
(I) has total assets exceeding $5,000,000; and
(II) is formed and operated by a person subject to regulation under this chapter or a foreign person performing a similar role or function subject as such to foreign regulation (regardless of whether each investor in the commodity pool or the foreign person is itself an eligible contract participant) provided, however, that for purposes of section 2(c)(2)(B)(vi) of this title and section 2(c)(2)(C)(vii) of this title, the term "eligible contract participant" shall not include a commodity pool in which any participant is not otherwise an eligible contract participant;
(v) a corporation, partnership, proprietorship, organization, trust, or other entity—
(I) that has total assets exceeding $10,000,000;
(II) the obligations of which under an agreement, contract, or transaction are guaranteed or otherwise supported by a letter of credit or keepwell, support, or other agreement by an entity described in subclause (I), in clause (i), (ii), (iii), (iv), or (vii), or in subparagraph (C); or
(III) that—
(aa) has a net worth exceeding $1,000,000; and
(bb) enters into an agreement, contract, or transaction in connection with the conduct of the entity's business or to manage the risk associated with an asset or liability owned or incurred or reasonably likely to be owned or incurred by the entity in the conduct of the entity's business;
(vi) an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1001 et seq.), a governmental employee benefit plan, or a foreign person performing a similar role or function subject as such to foreign regulation—
(I) that has total assets exceeding $5,000,000; or
(II) the investment decisions of which are made by—
(aa) an investment adviser or commodity trading advisor subject to regulation under the Investment Advisers Act of 1940 (15 U.S.C. 80b–1 et seq.) or this chapter;
(bb) a foreign person performing a similar role or function subject as such to foreign regulation;
(cc) a financial institution; or
(dd) an insurance company described in clause (ii), or a regulated subsidiary or affiliate of such an insurance company;
(vii)(I) a governmental entity (including the United States, a State, or a foreign government) or political subdivision of a governmental entity;
(II) a multinational or supranational government entity; or
(III) an instrumentality, agency, or department of an entity described in subclause (I) or (II);
except that such term does not include an entity, instrumentality, agency, or department referred to in subclause (I) or (III) of this clause unless (aa) the entity, instrumentality, agency, or department is a person described in clause (i), (ii), or (iii) of paragraph (17)(A); (bb) the entity, instrumentality, agency, or department owns and invests on a discretionary basis $50,000,000 or more in investments; or (cc) the agreement, contract, or transaction is offered by, and entered into with, an entity that is listed in any of subclauses (I) through (VI) of section 2(c)(2)(B)(ii) of this title;
(viii)(I) a broker or dealer subject to regulation under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) or a foreign person performing a similar role or function subject as such to foreign regulation, except that, if the broker or dealer or foreign person is a natural person or proprietorship, the broker or dealer or foreign person shall not be considered to be an eligible contract participant unless the broker or dealer or foreign person also meets the requirements of clause (v) or (xi);
(II) an associated person of a registered broker or dealer concerning the financial or securities activities of which the registered person makes and keeps records under section 15C(b) or 17(h) of the Securities Exchange Act of 1934 (15 U.S.C. 78o–5(b), 78q(h));
(III) an investment bank holding company (as defined in section 17(i) 2 of the Securities Exchange Act of 1934 (15 U.S.C. 78q(i)); 3
(ix) a futures commission merchant subject to regulation under this chapter or a foreign person performing a similar role or function subject as such to foreign regulation, except that, if the futures commission merchant or foreign person is a natural person or proprietorship, the futures commission merchant or foreign person shall not be considered to be an eligible contract participant unless the futures commission merchant or foreign person also meets the requirements of clause (v) or (xi);
(x) a floor broker or floor trader subject to regulation under this chapter in connection with any transaction that takes place on or through the facilities of a registered entity (other than an electronic trading facility with respect to a significant price discovery contract) or an exempt board of trade, or any affiliate thereof, on which such person regularly trades; or
(xi) an individual who has amounts invested on a discretionary basis, the aggregate of which is in excess of—
(I) $10,000,000; or
(II) $5,000,000 and who enters into the agreement, contract, or transaction in order to manage the risk associated with an asset owned or liability incurred, or reasonably likely to be owned or incurred, by the individual;
(B)(i) a person described in clause (i), (ii), (iv), (v), (viii), (ix), or (x) of subparagraph (A) or in subparagraph (C), acting as broker or performing an equivalent agency function on behalf of another person described in subparagraph (A) or (C); or
(ii) an investment adviser subject to regulation under the Investment Advisers Act of 1940 [15 U.S.C. 80b–1 et seq.], a commodity trading advisor subject to regulation under this chapter, a foreign person performing a similar role or function subject as such to foreign regulation, or a person described in clause (i), (ii), (iv), (v), (viii), (ix), or (x) of subparagraph (A) or in subparagraph (C), in any such case acting as investment manager or fiduciary (but excluding a person acting as broker or performing an equivalent agency function) for another person described in subparagraph (A) or (C) and who is authorized by such person to commit such person to the transaction; or
(C) any other person that the Commission determines to be eligible in light of the financial or other qualifications of the person.
(19) Excluded commodity
The term "excluded commodity" means—
(i) an interest rate, exchange rate, currency, security, security index, credit risk or measure, debt or equity instrument, index or measure of inflation, or other macroeconomic index or measure;
(ii) any other rate, differential, index, or measure of economic or commercial risk, return, or value that is—
(I) not based in substantial part on the value of a narrow group of commodities not described in clause (i); or
(II) based solely on one or more commodities that have no cash market;
(iii) any economic or commercial index based on prices, rates, values, or levels that are not within the control of any party to the relevant contract, agreement, or transaction; or
(iv) an occurrence, extent of an occurrence, or contingency (other than a change in the price, rate, value, or level of a commodity not described in clause (i)) that is—
(I) beyond the control of the parties to the relevant contract, agreement, or transaction; and
(II) associated with a financial, commercial, or economic consequence.
(20) Exempt commodity
The term "exempt commodity" means a commodity that is not an excluded commodity or an agricultural commodity.
(21) Financial institution
The term "financial institution" means—
(A) a corporation operating under the fifth undesignated paragraph of section 25 of the Federal Reserve Act (12 U.S.C. 603), commonly known as "an agreement corporation";
(B) a corporation organized under section 25A of the Federal Reserve Act (12 U.S.C. 611 et seq.), commonly known as an "Edge Act corporation";
(C) an institution that is regulated by the Farm Credit Administration;
(D) a Federal credit union or State credit union (as defined in section 1752 of title 12);
(E) a depository institution (as defined in section 1813 of title 12);
(F) a foreign bank or a branch or agency of a foreign bank (each as defined in section 3101 of title 12);
(G) any financial holding company (as defined in section 1841 of title 12);
(H) a trust company; or
(I) a similarly regulated subsidiary or affiliate of an entity described in any of subparagraphs (A) through (H).
(22) Floor broker
(A) In general
The term "floor broker" means any person—
(i) who, in or surrounding any pit, ring, post, or other place provided by a contract market for the meeting of persons similarly engaged, shall purchase or sell for any other person—
(I) any commodity for future delivery, security futures product, or swap; or
(II) any commodity option authorized under section 6c of this title; or
(ii) who is registered with the Commission as a floor broker.
(B) Further definition
The Commission, by rule or regulation, may include within, or exclude from, the term "floor broker" any person in or surrounding any pit, ring, post, or other place provided by a contract market for the meeting of persons similarly engaged who trades for any other person if the Commission determines that the rule or regulation will effectuate the purposes of this chapter.
(23) Floor trader
(A) In general
The term "floor trader" means any person—
(i) who, in or surrounding any pit, ring, post, or other place provided by a contract market for the meeting of persons similarly engaged, purchases, or sells solely for such person's own account—
(I) any commodity for future delivery, security futures product, or swap; or
(II) any commodity option authorized under section 6c of this title; or
(ii) who is registered with the Commission as a floor trader.
(B) Further definition
The Commission, by rule or regulation, may include within, or exclude from, the term "floor trader" any person in or surrounding any pit, ring, post, or other place provided by a contract market for the meeting of persons similarly engaged who trades solely for such person's own account if the Commission determines that the rule or regulation will effectuate the purposes of this chapter.
(24) Foreign exchange forward
The term "foreign exchange forward" means a transaction that solely involves the exchange of 2 different currencies on a specific future date at a fixed rate agreed upon on the inception of the contract covering the exchange.
(25) Foreign exchange swap
The term "foreign exchange swap" means a transaction that solely involves—
(A) an exchange of 2 different currencies on a specific date at a fixed rate that is agreed upon on the inception of the contract covering the exchange; and
(B) a reverse exchange of the 2 currencies described in subparagraph (A) at a later date and at a fixed rate that is agreed upon on the inception of the contract covering the exchange.
(26) Foreign futures authority
The term "foreign futures authority" means any foreign government, or any department, agency, governmental body, or regulatory organization empowered by a foreign government to administer or enforce a law, rule, or regulation as it relates to a futures or options matter, or any department or agency of a political subdivision of a foreign government empowered to administer or enforce a law, rule, or regulation as it relates to a futures or options matter.
(27) Future delivery
The term "future delivery" does not include any sale of any cash commodity for deferred shipment or delivery.
(28) Futures commission merchant
(A) In general
The term "futures commission merchant" means an individual, association, partnership, corporation, or trust—
(i) that—
(I) is—
(aa) engaged in soliciting or in accepting orders for—
(AA) the purchase or sale of a commodity for future delivery;
(BB) a security futures product;
(CC) a swap;
(DD) any agreement, contract, or transaction described in section 2(c)(2)(C)(i) of this title or section 2(c)(2)(D)(i) of this title;
(EE) any commodity option authorized under section 6c of this title; or
(FF) any leverage transaction authorized under section 23 of this title; or
(bb) acting as a counterparty in any agreement, contract, or transaction described in section 2(c)(2)(C)(i) of this title or section 2(c)(2)(D)(i) of this title; and
(II) in or in connection with the activities described in items (aa) or (bb) of subclause (I), accepts any money, securities, or property (or extends credit in lieu thereof) to margin, guarantee, or secure any trades or contracts that result or may result therefrom; or
(ii) that is registered with the Commission as a futures commission merchant.
(B) Further definition
The Commission, by rule or regulation, may include within, or exclude from, the term "futures commission merchant" any person who engages in soliciting or accepting orders for, or acting as a counterparty in, any agreement, contract, or transaction subject to this chapter, and who accepts any money, securities, or property (or extends credit in lieu thereof) to margin, guarantee, or secure any trades or contracts that result or may result therefrom, if the Commission determines that the rule or regulation will effectuate the purposes of this chapter.
(29) Hybrid instrument
The term "hybrid instrument" means a security having one or more payments indexed to the value, level, or rate of, or providing for the delivery of, one or more commodities.
(30) Interstate commerce
The term "interstate commerce" means commerce—
(A) between any State, territory, or possession, or the District of Columbia, and any place outside thereof; or
(B) between points within the same State, territory, or possession, or the District of Columbia, but through any place outside thereof, or within any territory or possession, or the District of Columbia.
(31) Introducing broker
(A) In general
The term "introducing broker" means any person (except an individual who elects to be and is registered as an associated person of a futures commission merchant)—
(i) who—
(I) is engaged in soliciting or in accepting orders for—
(aa) the purchase or sale of any commodity for future delivery, security futures product, or swap;
(bb) any agreement, contract, or transaction described in section 2(c)(2)(C)(i) of this title or section 2(c)(2)(D)(i) of this title;
(cc) any commodity option authorized under section 6c of this title; or
(dd) any leverage transaction authorized under section 23 of this title; and
(II) does not accept any money, securities, or property (or extend credit in lieu thereof) to margin, guarantee, or secure any trades or contracts that result or may result therefrom; or
(ii) who is registered with the Commission as an introducing broker.
(B) Further definition
The Commission, by rule or regulation, may include within, or exclude from, the term "introducing broker" any person who engages in soliciting or accepting orders for any agreement, contract, or transaction subject to this chapter, and who does not accept any money, securities, or property (or extend credit in lieu thereof) to margin, guarantee, or secure any trades or contracts that result or may result therefrom, if the Commission determines that the rule or regulation will effectuate the purposes of this chapter.
(32) Major security-based swap participant
The term "major security-based swap participant" has the meaning given the term in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)).
(33) Major swap participant
(A) In general
The term "major swap participant" means any person who is not a swap dealer, and—
(i) maintains a substantial position in swaps for any of the major swap categories as determined by the Commission, excluding—
(I) positions held for hedging or mitigating commercial risk; and
(II) positions maintained by any employee benefit plan (or any contract held by such a plan) as defined in paragraphs (3) and (32) of section 3 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002) for the primary purpose of hedging or mitigating any risk directly associated with the operation of the plan;
(ii) whose outstanding swaps create substantial counterparty exposure that could have serious adverse effects on the financial stability of the United States banking system or financial markets; or
(iii)(I) is a financial entity that is highly leveraged relative to the amount of capital it holds and that is not subject to capital requirements established by an appropriate Federal banking agency; and
(II) maintains a substantial position in outstanding swaps in any major swap category as determined by the Commission.
(B) Definition of substantial position
For purposes of subparagraph (A), the Commission shall define by rule or regulation the term "substantial position" at the threshold that the Commission determines to be prudent for the effective monitoring, management, and oversight of entities that are systemically important or can significantly impact the financial system of the United States. In setting the definition under this subparagraph, the Commission shall consider the person's relative position in uncleared as opposed to cleared swaps and may take into consideration the value and quality of collateral held against counterparty exposures.
(C) Scope of designation
For purposes of subparagraph (A), a person may be designated as a major swap participant for 1 or more categories of swaps without being classified as a major swap participant for all classes of swaps.
(D) Exclusions
The definition under this paragraph shall not include an entity whose primary business is providing financing, and uses derivatives for the purpose of hedging underlying commercial risks related to interest rate and foreign currency exposures, 90 percent or more of which arise from financing that facilitates the purchase or lease of products, 90 percent or more of which are manufactured by the parent company or another subsidiary of the parent company.
(34) Member of a registered entity; member of a derivatives transaction execution facility
The term "member" means, with respect to a registered entity or derivatives transaction execution facility, an individual, association, partnership, corporation, or trust—
(A) owning or holding membership in, or admitted to membership representation on, the registered entity or derivatives transaction execution facility; or
(B) having trading privileges on the registered entity or derivatives transaction execution facility.
A participant in an alternative trading system that is designated as a contract market pursuant to section 7b–1 of this title is deemed a member of the contract market for purposes of transactions in security futures products through the contract market.
(35) Narrow-based security index
(A) The term "narrow-based security index" means an index—
(i) that has 9 or fewer component securities;
(ii) in which a component security comprises more than 30 percent of the index's weighting;
(iii) in which the five highest weighted component securities in the aggregate comprise more than 60 percent of the index's weighting; or
(iv) in which the lowest weighted component securities comprising, in the aggregate, 25 percent of the index's weighting have an aggregate dollar value of average daily trading volume of less than $50,000,000 (or in the case of an index with 15 or more component securities, $30,000,000), except that if there are two or more securities with equal weighting that could be included in the calculation of the lowest weighted component securities comprising, in the aggregate, 25 percent of the index's weighting, such securities shall be ranked from lowest to highest dollar value of average daily trading volume and shall be included in the calculation based on their ranking starting with the lowest ranked security.
(B) Notwithstanding subparagraph (A), an index is not a narrow-based security index if—
(i)(I) it has at least 9 component securities;
(II) no component security comprises more than 30 percent of the index's weighting; and
(III) each component security is—
(aa) registered pursuant to section 12 of the Securities Exchange Act of 1934 [15 U.S.C. 78l];
(bb) one of 750 securities with the largest market capitalization; and
(cc) one of 675 securities with the largest dollar value of average daily trading volume;
(ii) a board of trade was designated as a contract market by the Commodity Futures Trading Commission with respect to a contract of sale for future delivery on the index, before December 21, 2000;
(iii)(I) a contract of sale for future delivery on the index traded on a designated contract market or registered derivatives transaction execution facility for at least 30 days as a contract of sale for future delivery on an index that was not a narrow-based security index; and
(II) it has been a narrow-based security index for no more than 45 business days over 3 consecutive calendar months;
(iv) a contract of sale for future delivery on the index is traded on or subject to the rules of a foreign board of trade and meets such requirements as are jointly established by rule or regulation by the Commission and the Securities and Exchange Commission;
(v) no more than 18 months have passed since December 21, 2000, and—
(I) it is traded on or subject to the rules of a foreign board of trade;
(II) the offer and sale in the United States of a contract of sale for future delivery on the index was authorized before December 21, 2000; and
(III) the conditions of such authorization continue to be met; or
(vi) a contract of sale for future delivery on the index is traded on or subject to the rules of a board of trade and meets such requirements as are jointly established by rule, regulation, or order by the Commission and the Securities and Exchange Commission.
(C) Within 1 year after December 21, 2000, the Commission and the Securities and Exchange Commission jointly shall adopt rules or regulations that set forth the requirements under subparagraph (B)(iv).
(D) An index that is a narrow-based security index solely because it was a narrow-based security index for more than 45 business days over 3 consecutive calendar months pursuant to clause (iii) of subparagraph (B) shall not be a narrow-based security index for the 3 following calendar months.
(E) For purposes of subparagraphs (A) and (B)—
(i) the dollar value of average daily trading volume and the market capitalization shall be calculated as of the preceding 6 full calendar months; and
(ii) the Commission and the Securities and Exchange Commission shall, by rule or regulation, jointly specify the method to be used to determine market capitalization and dollar value of average daily trading volume.
(36) Option
The term "option" means an agreement, contract, or transaction that is of the character of, or is commonly known to the trade as, an "option", "privilege", "indemnity", "bid", "offer", "put", "call", "advance guaranty", or "decline guaranty".
(37) Organized exchange
The term "organized exchange" means a trading facility that—
(A) permits trading—
(i) by or on behalf of a person that is not an eligible contract participant; or
(ii) by persons other than on a principal-to-principal basis; or
(B) has adopted (directly or through another nongovernmental entity) rules that—
(i) govern the conduct of participants, other than rules that govern the submission of orders or execution of transactions on the trading facility; and
(ii) include disciplinary sanctions other than the exclusion of participants from trading.
(38) Person
The term "person" imports the plural or singular, and includes individuals, associations, partnerships, corporations, and trusts.
(39) Prudential regulator
The term "prudential regulator" means—
(A) the Board in the case of a swap dealer, major swap participant, security-based swap dealer, or major security-based swap participant that is—
(i) a State-chartered bank that is a member of the Federal Reserve System;
(ii) a State-chartered branch or agency of a foreign bank;
(iii) any foreign bank which does not operate an insured branch;
(iv) any organization operating under section 25A of the Federal Reserve Act [12 U.S.C. 611 et seq.] or having an agreement with the Board under section 225 of the Federal Reserve Act 4;
(v) any bank holding company (as defined in section 2 of the Bank Holding Company Act of 1965 4 (12 U.S.C. 1841)), any foreign bank (as defined in section 3101(7) of title 12) that is treated as a bank holding company under section 3106(a) of title 12, and any subsidiary of such a company or foreign bank (other than a subsidiary that is described in subparagraph (A) or (B) or that is required to be registered with the Commission as a swap dealer or major swap participant under this chapter or with the Securities and Exchange Commission as a security-based swap dealer or major security-based swap participant);
(vi) after the transfer date (as defined in section 311 of the Dodd-Frank Wall Street Reform and Consumer Protection Act [12 U.S.C. 5411]), any savings and loan holding company (as defined in section 1467a of title 12) and any subsidiary of such company (other than a subsidiary that is described in subparagraph (A) or (B) or that is required to be registered as a swap dealer or major swap participant with the Commission under this chapter or with the Securities and Exchange Commission as a security-based swap dealer or major security-based swap participant); or
(vii) any organization operating under section 25A of the Federal Reserve Act (12 U.S.C. 611 et seq.) or having an agreement with the Board under section 25 of the Federal Reserve Act (12 U.S.C. 601 et seq.);
(B) the Office of the Comptroller of the Currency in the case of a swap dealer, major swap participant, security-based swap dealer, or major security-based swap participant that is—
(i) a national bank;
(ii) a federally chartered branch or agency of a foreign bank; or
(iii) any Federal savings association;
(C) the Federal Deposit Insurance Corporation in the case of a swap dealer, major swap participant, security-based swap dealer, or major security-based swap participant that is—
(i) a State-chartered bank that is not a member of the Federal Reserve System; or
(ii) any State savings association;
(D) the Farm Credit Administration, in the case of a swap dealer, major swap participant, security-based swap dealer, or major security-based swap participant that is an institution chartered under the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.); and
(E) the Federal Housing Finance Agency in the case of a swap dealer, major swap participant, security-based swap dealer, or major security-based swap participant that is a regulated entity (as such term is defined in section 4502 of title 12).
(40) Registered entity
The term "registered entity" means—
(A) a board of trade designated as a contract market under section 7 of this title;
(B) a derivatives clearing organization registered under section 7a–1 of this title;
(C) a board of trade designated as a contract market under section 7b–1 of this title;
(D) a swap execution facility registered under section 7b–3 of this title;
(E) a swap data repository registered under section 24a of this title; and
(F) with respect to a contract that the Commission determines is a significant price discovery contract, any electronic trading facility on which the contract is executed or traded.
(41) Security
The term "security" means a security as defined in section 2(a)(1) of the Securities Act of 1933 (15 U.S.C. 77b(a)(1)) or section 3(a)(10) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(10)).
(42) Security-based swap
The term "security-based swap" has the meaning given the term in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)).
(43) Security-based swap dealer
The term "security-based swap dealer" has the meaning given the term in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)).
(44) Security future
The term "security future" means a contract of sale for future delivery of a single security or of a narrow-based security index, including any interest therein or based on the value thereof, except an exempted security under section 3(a)(12) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(12)] as in effect on January 11, 1983 (other than any municipal security as defined in section 3(a)(29) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(29)] as in effect on January 11, 1983). The term "security future" does not include any agreement, contract, or transaction excluded from this chapter under section 2(c), 2(d), 2(f), or 2(g) of this title (as in effect on December 21, 2000) or sections 27 to 27f of this title.
(45) Security futures product
The term "security futures product" means a security future or any put, call, straddle, option, or privilege on any security future.
(46) Significant price discovery contract
The term "significant price discovery contract" means an agreement, contract, or transaction subject to section 2(h)(5) of this title.
(47) Swap
(A) In general
Except as provided in subparagraph (B), the term "swap" means any agreement, contract, or transaction—
(i) that is a put, call, cap, floor, collar, or similar option of any kind that is for the purchase or sale, or based on the value, of 1 or more interest or other rates, currencies, commodities, securities, instruments of indebtedness, indices, quantitative measures, or other financial or economic interests or property of any kind;
(ii) that provides for any purchase, sale, payment, or delivery (other than a dividend on an equity security) that is dependent on the occurrence, nonoccurrence, or the extent of the occurrence of an event or contingency associated with a potential financial, economic, or commercial consequence;
(iii) that provides on an executory basis for the exchange, on a fixed or contingent basis, of 1 or more payments based on the value or level of 1 or more interest or other rates, currencies, commodities, securities, instruments of indebtedness, indices, quantitative measures, or other financial or economic interests or property of any kind, or any interest therein or based on the value thereof, and that transfers, as between the parties to the transaction, in whole or in part, the financial risk associated with a future change in any such value or level without also conveying a current or future direct or indirect ownership interest in an asset (including any enterprise or investment pool) or liability that incorporates the financial risk so transferred, including any agreement, contract, or transaction commonly known as—
(I) an interest rate swap;
(II) a rate floor;
(III) a rate cap;
(IV) a rate collar;
(V) a cross-currency rate swap;
(VI) a basis swap;
(VII) a currency swap;
(VIII) a foreign exchange swap;
(IX) a total return swap;
(X) an equity index swap;
(XI) an equity swap;
(XII) a debt index swap;
(XIII) a debt swap;
(XIV) a credit spread;
(XV) a credit default swap;
(XVI) a credit swap;
(XVII) a weather swap;
(XVIII) an energy swap;
(XIX) a metal swap;
(XX) an agricultural swap;
(XXI) an emissions swap; and
(XXII) a commodity swap;
(iv) that is an agreement, contract, or transaction that is, or in the future becomes, commonly known to the trade as a swap;
(v) including any security-based swap agreement which meets the definition of "swap agreement" as defined in section 206A of the Gramm-Leach-Bliley Act (15 U.S.C. 78c note) of which a material term is based on the price, yield, value, or volatility of any security or any group or index of securities, or any interest therein; or
(vi) that is any combination or permutation of, or option on, any agreement, contract, or transaction described in any of clauses (i) through (v).
(B) Exclusions
The term "swap" does not include—
(i) any contract of sale of a commodity for future delivery (or option on such a contract), leverage contract authorized under section 23 of this title, security futures product, or agreement, contract, or transaction described in section 2(c)(2)(C)(i) of this title or section 2(c)(2)(D)(i) of this title;
(ii) any sale of a nonfinancial commodity or security for deferred shipment or delivery, so long as the transaction is intended to be physically settled;
(iii) any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities, including any interest therein or based on the value thereof, that is subject to—
(I) the Securities Act of 1933 (15 U.S.C. 77a et seq.); and
(II) the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.);
(iv) any put, call, straddle, option, or privilege relating to a foreign currency entered into on a national securities exchange registered pursuant to section 6(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78f(a));
(v) any agreement, contract, or transaction providing for the purchase or sale of 1 or more securities on a fixed basis that is subject to—
(I) the Securities Act of 1933 (15 U.S.C. 77a et seq.); and
(II) the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.);
(vi) any agreement, contract, or transaction providing for the purchase or sale of 1 or more securities on a contingent basis that is subject to the Securities Act of 1933 (15 U.S.C. 77a et seq.) and the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), unless the agreement, contract, or transaction predicates the purchase or sale on the occurrence of a bona fide contingency that might reasonably be expected to affect or be affected by the creditworthiness of a party other than a party to the agreement, contract, or transaction;
(vii) any note, bond, or evidence of indebtedness that is a security, as defined in section 2(a)(1) of the Securities Act of 1933 (15 U.S.C. 77b(a)(1));
(viii) any agreement, contract, or transaction that is—
(I) based on a security; and
(II) entered into directly or through an underwriter (as defined in section 2(a)(11) of the Securities Act of 1933 (15 U.S.C. 77b(a)(11)) 5 by the issuer of such security for the purposes of raising capital, unless the agreement, contract, or transaction is entered into to manage a risk associated with capital raising;
(ix) any agreement, contract, or transaction a counterparty of which is a Federal Reserve bank, the Federal Government, or a Federal agency that is expressly backed by the full faith and credit of the United States; and
(x) any security-based swap, other than a security-based swap as described in subparagraph (D).
(C) Rule of construction regarding master agreements
(i) In general
Except as provided in clause (ii), the term "swap" includes a master agreement that provides for an agreement, contract, or transaction that is a swap under subparagraph (A), together with each supplement to any master agreement, without regard to whether the master agreement contains an agreement, contract, or transaction that is not a swap pursuant to subparagraph (A).
(ii) Exception
For purposes of clause (i), the master agreement shall be considered to be a swap only with respect to each agreement, contract, or transaction covered by the master agreement that is a swap pursuant to subparagraph (A).
(D) Mixed swap
The term "security-based swap" includes any agreement, contract, or transaction that is as described in section 3(a)(68)(A) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(68)(A)) and also is based on the value of 1 or more interest or other rates, currencies, commodities, instruments of indebtedness, indices, quantitative measures, other financial or economic interest or property of any kind (other than a single security or a narrow-based security index), or the occurrence, non-occurrence, or the extent of the occurrence of an event or contingency associated with a potential financial, economic, or commercial consequence (other than an event described in subparagraph (A)(iii)).
(E) Treatment of foreign exchange swaps and forwards
(i) In general
Foreign exchange swaps and foreign exchange forwards shall be considered swaps under this paragraph unless the Secretary makes a written determination under section 1b of this title that either foreign exchange swaps or foreign exchange forwards or both—
(I) should be not be regulated as swaps under this chapter; and
(II) are not structured to evade the Dodd-Frank Wall Street Reform and Consumer Protection Act in violation of any rule promulgated by the Commission pursuant to section 721(c) of that Act [15 U.S.C. 8321(b)].
(ii) Congressional notice; effectiveness
The Secretary shall submit any written determination under clause (i) to the appropriate committees of Congress, including the Committee on Agriculture, Nutrition, and Forestry of the Senate and the Committee on Agriculture of the House of Representatives. Any such written determination by the Secretary shall not be effective until it is submitted to the appropriate committees of Congress.
(iii) Reporting
Notwithstanding a written determination by the Secretary under clause (i), all foreign exchange swaps and foreign exchange forwards shall be reported to either a swap data repository, or, if there is no swap data repository that would accept such swaps or forwards, to the Commission pursuant to section 6r of this title within such time period as the Commission may by rule or regulation prescribe.
(iv) Business standards
Notwithstanding a written determination by the Secretary pursuant to clause (i), any party to a foreign exchange swap or forward that is a swap dealer or major swap participant shall conform to the business conduct standards contained in section 6s(h) of this title.
(v) Secretary
For purposes of this subparagraph, the term "Secretary" means the Secretary of the Treasury.
(F) Exception for certain foreign exchange swaps and forwards
(i) Registered entities
Any foreign exchange swap and any foreign exchange forward that is listed and traded on or subject to the rules of a designated contract market or a swap execution facility, or that is cleared by a derivatives clearing organization, shall not be exempt from any provision of this chapter or amendments made by the Wall Street Transparency and Accountability Act of 2010 prohibiting fraud or manipulation.
(ii) Retail transactions
Nothing in subparagraph (E) shall affect, or be construed to affect, the applicability of this chapter or the jurisdiction of the Commission with respect to agreements, contracts, or transactions in foreign currency pursuant to section 2(c)(2) of this title.
(48) Swap data repository
The term "swap data repository" means any person that collects and maintains information or records with respect to transactions or positions in, or the terms and conditions of, swaps entered into by third parties for the purpose of providing a centralized recordkeeping facility for swaps.
(49) Swap dealer
(A) In general
The term "swap dealer" means any person who—
(i) holds itself out as a dealer in swaps;
(ii) makes a market in swaps;
(iii) regularly enters into swaps with counterparties as an ordinary course of business for its own account; or
(iv) engages in any activity causing the person to be commonly known in the trade as a dealer or market maker in swaps,
provided however, in no event shall an insured depository institution be considered to be a swap dealer to the extent it offers to enter into a swap with a customer in connection with originating a loan with that customer.
(B) Inclusion
A person may be designated as a swap dealer for a single type or single class or category of swap or activities and considered not to be a swap dealer for other types, classes, or categories of swaps or activities.
(C) Exception
The term "swap dealer" does not include a person that enters into swaps for such person's own account, either individually or in a fiduciary capacity, but not as a part of a regular business.
(D) De minimis exception
The Commission shall exempt from designation as a swap dealer an entity that engages in a de minimis quantity of swap dealing in connection with transactions with or on behalf of its customers. The Commission shall promulgate regulations to establish factors with respect to the making of this determination to exempt.
(50) Swap execution facility
The term "swap execution facility" means a trading system or platform in which multiple participants have the ability to execute or trade swaps by accepting bids and offers made by multiple participants in the facility or system, through any means of interstate commerce, including any trading facility, that—
(A) facilitates the execution of swaps between persons; and
(B) is not a designated contract market.
(51) Trading facility
(A) In general
The term "trading facility" means a person or group of persons that constitutes, maintains, or provides a physical or electronic facility or system in which multiple participants have the ability to execute or trade agreements, contracts, or transactions—
(i) by accepting bids or offers made by other participants that are open to multiple participants in the facility or system; or
(ii) through the interaction of multiple bids or multiple offers within a system with a pre-determined non-discretionary automated trade matching and execution algorithm.
(B) Exclusions
The term "trading facility" does not include—
(i) a person or group of persons solely because the person or group of persons constitutes, maintains, or provides an electronic facility or system that enables participants to negotiate the terms of and enter into bilateral transactions as a result of communications exchanged by the parties and not from interaction of multiple bids and multiple offers within a predetermined, nondiscretionary automated trade matching and execution algorithm;
(ii) a government securities dealer or government securities broker, to the extent that the dealer or broker executes or trades agreements, contracts, or transactions in government securities, or assists persons in communicating about, negotiating, entering into, executing, or trading an agreement, contract, or transaction in government securities (as the terms "government securities dealer", "government securities broker", and "government securities" are defined in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a))); or
(iii) facilities on which bids and offers, and acceptances of bids and offers effected on the facility, are not binding.
Any person, group of persons, dealer, broker, or facility described in clause (i) or (ii) is excluded from the meaning of the term "trading facility" for the purposes of this chapter without any prior specific approval, certification, or other action by the Commission.
(C) Special rule
A person or group of persons that would not otherwise constitute a trading facility shall not be considered to be a trading facility solely as a result of the submission to a derivatives clearing organization of transactions executed on or through the person or group of persons.
(Sept. 21, 1922, ch. 369, §1a, as added Pub. L. 102–546, title IV, §404(a), Oct. 28, 1992, 106 Stat. 3625; amended Pub. L. 106–554, §1(a)(5) [title I, §§101, 123(a)(1)], Dec. 21, 2000, 114 Stat. 2763, 2763A-366, 2763A-405; Pub. L. 110–234, title XIII, §§13105(j), 13201(a), 13203(a), (b), May 22, 2008, 122 Stat. 1435, 1439; Pub. L. 110–246, §4(a), title XIII, §§13105(j), 13201(a), 13203(a), (b), June 18, 2008, 122 Stat. 1664, 2197, 2201; Pub. L. 111–203, title VII, §§721(a), 741(b)(10), July 21, 2010, 124 Stat. 1658, 1732.)
Editorial Notes
References in Text
The Employee Retirement Income Security Act of 1974, referred to in pars. (12)(B)(v) and (18)(A)(vi), is Pub. L. 93–406, Sept. 2, 1974, 88 Stat. 829, which is classified principally to chapter 18 (§1001 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 1001 of Title 29 and Tables.
The Securities Act of 1933, referred to in pars. (17)(B)(ii)(I)(bb) and (47)(B)(iii)(I), (v)(I), (vi), is title I of act May 27, 1933, ch. 38, 48 Stat. 74, which is classified generally to subchapter I (§77a et seq.) of chapter 2A of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 77a of Title 15 and Tables.
The Investment Company Act of 1940, referred to in par. (18)(A)(iii), is title I of act Aug. 22, 1940, ch. 686, 54 Stat. 789, which is classified generally to subchapter I (§80a–1 et seq.) of chapter 2D of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 80a–51 of Title 15 and Tables.
The Investment Advisers Act of 1940, referred to in par. (18)(A)(vi)(II)(aa), (B)(ii), is title II of act Aug. 22, 1940, ch. 686, 54 Stat. 847, which is classified generally to subchapter II (§80b–1 et seq.) of chapter 2D of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 80b–20 of Title 15 and Tables.
The Securities Exchange Act of 1934, referred to in pars. (18)(A)(viii)(I) and (47)(B)(iii)(II), (v)(II), (vi), is act June 6, 1934, ch. 404, 48 Stat. 881, which is classified principally to chapter 2B (§78a et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 78a of Title 15 and Tables.
Subsec. (i) of section 17 of the Securities Exchange Act of 1934, referred to in par. (18)(A)(viii)(III), was struck out and subsec. (j) was redesignated (i) by Pub. L. 111–203, title VI, §617(a), July 21, 2010, 124 Stat. 1616.
Section 25A of the Federal Reserve Act, referred to in pars. (21)(B) and (39)(A)(iv), (vii), popularly known as the Edge Act, is classified to subchapter II (§611 et seq.) of chapter 6 of Title 12, Banks and Banking. For complete classification of this Act to the Code, see Short Title note set out under section 611 of Title 12 and Tables.
Section 225 of the Federal Reserve Act, referred to in par. (39)(A)(iv), probably should be a reference to section 25 of the Federal Reserve Act, which is classified to subchapter I (§601 et seq.) of chapter 6 of Title 12, Banks and Banking.
Section 2 of the Bank Holding Company Act of 1965, referred to in par. (39)(A)(v), probably should be a reference to section 2 of the Bank Holding Company Act of 1956, act May 9, 1956, ch. 240, 70 Stat. 133, which is classified to section 1841 of Title 12, Banks and Banking.
Section 25 of the Federal Reserve Act, referred to in par. (39)(A)(vii), is classified to subchapter I (§601 et seq.) of chapter 6 of Title 12, Banks and Banking.
The Farm Credit Act of 1971, referred to in par. (39)(D), is Pub. L. 92–181, Dec. 10, 1971, 85 Stat. 583, which is classified principally to chapter 23 (§2001 et seq.) of Title 12, Banks and Banking. For complete classification of this Act to the Code, see Short Title note set out under section 2001 of Title 12 and Tables.
Section 206A of the Gramm-Leach-Bliley Act, referred to in par. (47)(A)(v), is section 206A of Pub. L. 106–102 which is set out as a note under section 78c of Title 15, Commerce and Trade.
The Dodd-Frank Wall Street Reform and Consumer Protection Act, referred to in par. (47)(E)(i)(II), is Pub. L. 111–203, July 21, 2010, 124 Stat. 1376, which enacted chapter 53 (§5301 et seq.) of Title 12, Banks and Banking, and chapters 108 (§8201 et seq.) and 109 (§8301 et seq.) of Title 15, Commerce and Trade, and enacted, amended, and repealed numerous other sections and notes in the Code. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of Title 12 and Tables.
The Wall Street Transparency and Accountability Act of 2010, referred to in par. (47)(F)(i), is title VII of Pub. L. 111–203, July 21, 2010, 124 Stat. 1641, which enacted chapter 109 (§8301 et seq.) of Title 15, Commerce and Trade, and enacted and amended numerous other sections and notes in the Code. For complete classification of this Act to the Code, see Short Title note set out under section 8301 of Title 15 and Tables.
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2010—Pub. L. 111–203, §721(a)(1), redesignated pars. (2), (3), and (4), (5) to (17), (18) to (23), (24) to (28), (29), (30), (31) to (33), and (34) as (6), (8), and (9), (11) to (23), (26) to (31), (34) to (38), (40), (41), (44) to (46), and (51), respectively.
Pars. (2), (3). Pub. L. 111–203, §721(a)(2), added pars. (2) and (3). Former pars. (2) and (3) redesignated (6) and (8), respectively.
Par. (4). Pub. L. 111–203, §721(a)(4), which directed amendment of par. (9), as redesignated by Pub. L. 111–203, §721(a)(1), by substituting "except onions (as provided by section 13–1 of this title) and motion picture box office receipts (or any index, measure, value, or data related to such receipts), and all services, rights, and interests (except motion picture box office receipts, or any index, measure, value or data related to such receipts) in which contracts for future delivery are presently or in the future dealt in." for "except onions as provided in section 13–1 of this title, and all services, rights, and interests in which contracts for future delivery are presently or in the future dealt in.", was executed by making the substitution in par. (4). Amendment was executed before amendment by Pub. L. 111–203, §721(a)(1), to reflect the probable intent of Congress, notwithstanding effective date provisions in sections 721(f) and 754 of Pub. L. 111–203. See Effective Date of 2010 Amendment notes below.
Pub. L. 111–203, §721(a)(2), added par. (4). Former par. (4) redesignated (9).
Par. (5). Pub. L. 111–203, §721(a)(2), added par. (5). Former par. (5) redesignated (11).
Par. (7). Pub. L. 111–203, §721(a)(3), added par. (7). Former par. (7) redesignated (13).
Par. (10). Pub. L. 111–203, §721(a)(5), added par. (10). Former par. (10) redesignated (16).
Par. (11). Pub. L. 111–203, §721(a)(6), added par. (11) and struck out former par. (11). Prior to amendment, text read as follows: "The term 'commodity pool operator' means any person engaged in a business that is of the nature of an investment trust, syndicate, or similar form of enterprise, and who, in connection therewith, solicits, accepts, or receives from others, funds, securities, or property, either directly or through capital contributions, the sale of stock or other forms of securities, or otherwise, for the purpose of trading in any commodity for future delivery on or subject to the rules of any contract market or derivatives transaction execution facility, except that the term does not include such persons not within the intent of the definition of the term as the Commission may specify by rule, regulation, or order."
Par. (12)(A)(i)(I). Pub. L. 111–203, §721(a)(7)(A)(i), substituted ", security futures product, or swap" for "made or to be made on or subject to the rules of a contract market or derivatives transaction execution facility".
Par. (12)(A)(i)(II) to (IV). Pub. L. 111–203, §721(a)(7)(A)(ii), (iii), added subcl. (II) and redesignated former subcls. (II) and (III) as (III) and (IV), respectively.
Par. (12)(A)(iii), (iv). Pub. L. 111–203, §721(a)(7)(A)(iv), (B), (C), added cls. (iii) and (iv).
Par. (17)(A). Pub. L. 111–203, §721(a)(8), substituted "paragraph (18)(A)" for "paragraph (12)(A)" in introductory provisions.
Par. (18)(A)(iv)(II). Pub. L. 111–203, §741(b)(10), which directed amendment of par. (19)(A)(iv)(II) by inserting before semicolon at end "provided, however, that for purposes of section 2(c)(2)(B)(vi) of this title and section 2(c)(2)(C)(vii) of this title, the term 'eligible contract participant' shall not include a commodity pool in which any participant is not otherwise an eligible contract participant", was executed by making the insertion in par. (18)(A)(iv)(II) to reflect the probable intent of Congress.
Par. (18)(A)(vii). Pub. L. 111–203, §721(a)(9)(A)(i), substituted "paragraph (17)(A)" for "paragraph (11)(A)" and "$50,000,000" for "$25,000,000" in concluding provisions.
Par. (18)(A)(xi). Pub. L. 111–203, §721(a)(9)(A)(ii), substituted "amounts invested on a discretionary basis, the aggregate of which is" for "total assets in an amount" in introductory provisions.
Par. (22). Pub. L. 111–203, §721(a)(10), added par. (22) and struck out former par. (22). Prior to amendment, text read as follows: "The term 'floor broker' means any person who, in or surrounding any pit, ring, post, or other place provided by a contract market or derivatives transaction execution facility for the meeting of persons similarly engaged, shall purchase or sell for any other person any commodity for future delivery on or subject to the rules of any contract market or derivatives transaction execution facility."
Par. (23). Pub. L. 111–203, §721(a)(11), added par. (23) and struck out former par. (23). Prior to amendment, text read as follows: "The term 'floor trader' means any person who, in or surrounding any pit, ring, post, or other place provided by a contract market or derivatives transaction execution facility for the meeting of persons similarly engaged, purchases, or sells solely for such person's own account, any commodity for future delivery on or subject to the rules of any contract market or derivatives transaction execution facility."
Pars. (24), (25). Pub. L. 111–203, §721(a)(12), added pars. (24) and (25). Former pars. (24) and (25) redesignated (34) and (35), respectively.
Par. (28). Pub. L. 111–203, §721(a)(13), added par. (28) and struck out former par. (28) which defined "futures commission merchant".
Par. (30)(B). Pub. L. 111–203, §721(a)(14), substituted "State" for "state".
Par. (31). Pub. L. 111–203, §721(a)(15), added par. (31) and struck out former par. (31). Prior to amendment, text read as follows: "The term 'introducing broker' means any person (except an individual who elects to be and is registered as an associated person of a futures commission merchant) engaged in soliciting or in accepting orders for the purchase or sale of any commodity for future delivery on or subject to the rules of any contract market or derivatives transaction execution facility who does not accept any money, securities, or property (or extend credit in lieu thereof) to margin, guarantee, or secure any trades or contracts that result or may result therefrom."
Pars. (32), (33). Pub. L. 111–203, §721(a)(16), added pars. (32) and (33). Former pars. (32) and (33) redesignated (45) and (46), respectively.
Par. (39). Pub. L. 111–203, §721(a)(17), added par. (39).
Par. (40)(B) to (F). Pub. L. 111–203, §721(a)(18), added subpars. (D) and (E), redesignated former subpars. (C), (D), and (E) as (B), (C), and (F), respectively, and struck out former subpar. (B) which read as follows: "a derivatives transaction execution facility registered under section 7a of this title;".
Pars. (42), (43). Pub. L. 111–203, §721(a)(19), added pars. (42) and (43).
Par. (46). Pub. L. 111–203, §721(a)(20), substituted "subject to section 2(h)(5) of this title" for "subject to section 2(h)(7) of this title".
Pars. (47) to (50). Pub. L. 111–203, §721(a)(21), added pars. (47) to (50).
Par. (51)(A)(i). Pub. L. 111–203, §721(a)(22), substituted "participants" for "partipants".
2008—Par. (12)(A)(x). Pub. L. 110–246, §13203(a), inserted "(other than an electronic trading facility with respect to a significant price discovery contract)" after "registered entity".
Par. (29)(E). Pub. L. 110–246, §13203(b), added subpar. (E).
Par. (33). Pub. L. 110–246, §13201(a), added par. (33). Former par. (33) redesignated (34).
Par. (33)(A). Pub. L. 110–246, §13105(j), substituted "transactions—" for "transactions by accepting bids and offers made by other participants that are open to multiple participants in the facility or system." in introductory provisions and added cls. (i) and (ii).
Par. (34). Pub. L. 110–246, §13201(a)(1), redesignated par. (33) as (34).
2000—Par. (1). Pub. L. 106–554, §1(a)(5) [title I, §101(2)], added par. (1). Former par. (1) redesignated (2).
Par. (2). Pub. L. 106–554, §1(a)(5) [title I, §101(3)], added par. (2) and struck out heading and text of former par. (2). Text read as follows: "The term 'board of trade' means any exchange or association, whether incorporated or unincorporated, of persons who are engaged in the business of buying or selling any commodity or receiving the same for sale on consignment."
Pub. L. 106–554, §1(a)(5) [title I, §101(1)], redesignated par. (1) as (2). Former par. (2) redesignated (3).
Pars. (3), (4). Pub. L. 106–554, §1(a)(5) [title I, §101(1)], redesignated pars. (2) and (3) as (3) and (4), respectively. Former par. (4) redesignated (5).
Par. (5). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(1)(A)], inserted "or derivatives transaction execution facility" after "contract market".
Pub. L. 106–554, §1(a)(5) [title I, §101(1)], redesignated par. (4) as (5). Former par. (5) redesignated (6).
Par. (6). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(1)(A)], inserted "or derivatives transaction execution facility" after "contract market" in subpars. (A)(i)(I) and (B)(vi).
Pub. L. 106–554, §1(a)(5) [title I, §101(1)], redesignated par. (5) as (6). Former par. (6) redesignated (7).
Pars. (7), (8). Pub. L. 106–554, §1(a)(5) [title I, §101(1)], redesignated pars. (6) and (7) as (7) and (8), respectively. Former par. (8) redesignated (16).
Pars. (9) to (15). Pub. L. 106–554, §1(a)(5) [title I, §101(4)], added pars. (9) to (15). Former pars. (9) to (12) and (13) to (15) redesignated (17) to (20) and (22) to (24), respectively.
Par. (16). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(1)(A)], inserted "or derivatives transaction execution facility" after "contract market" in two places.
Pub. L. 106–554, §1(a)(5) [title I, §101(1)], redesignated par. (8) as (16). Former par. (16) redesignated (28).
Par. (17). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(1)(A)], inserted "or derivatives transaction execution facility" after "contract market" in two places.
Pub. L. 106–554, §1(a)(5) [title I, §101(1)], redesignated par. (9) as (17).
Pars. (18), (19). Pub. L. 106–554, §1(a)(5) [title I, §101(1)], redesignated pars. (10) and (11) as (18) and (19), respectively.
Par. (20). Pub. L. 106–554, §1(a)(5) [title I, §101(1)], redesignated par. (12) as (20).
Par. (20)(A). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(1)(A)], inserted "or derivatives transaction execution facility" after "contract market".
Par. (21). Pub. L. 106–554, §1(a)(5) [title I, §101(5)], added par. (21).
Par. (22). Pub. L. 106–554, §1(a)(5) [title I, §101(1)], redesignated par. (13) as (22).
Par. (23). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(1)(A)], inserted "or derivatives transaction execution facility" after "contract market".
Pub. L. 106–554, §1(a)(5) [title I, §101(1)], redesignated par. (14) as (23).
Par. (24). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(1)(B)], substituted "registered entity" for "contract market" wherever appearing in heading and text and inserted concluding provisions.
Pub. L. 106–554, §1(a)(5) [title I, §101(6)], added par. (24) and struck out heading and text of former par. (24). Text read as follows: "The term 'member of a contract market' means an individual, association, partnership, corporation, or trust owning or holding membership in, or admitted to membership representation on, a contract market or given members' trading privileges thereon."
Pub. L. 106–554, §1(a)(5) [title I, §101(1)], redesignated par. (15) as (24).
Pars. (25) to (27). Pub. L. 106–554, §1(a)(5) [title I, §101(6)], added pars. (25) to (27).
Par. (28). Pub. L. 106–554, §1(a)(5) [title I, §101(1)], redesignated par. (16) as (28).
Pars. (29) to (33). Pub. L. 106–554, §1(a)(5) [title I, §101(7)], added pars. (29) to (33).
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Pub. L. 111–203, title VII, §721(f), July 21, 2010, 124 Stat. 1672, provided that: "Notwithstanding any other provision of this Act [see Tables for classification], the amendments made by subsection (a)(4) [amending this section] shall take effect on June 1, 2010."
Pub. L. 111–203, title VII, §754, July 21, 2010, 124 Stat. 1754, provided that: "Unless otherwise provided in this title [see Tables for classification], the provisions of this subtitle [subtitle A (§§711–754) of title VII of Pub. L. 111–203, see Tables for classification] shall take effect on the later of 360 days after the date of the enactment of this subtitle [July 21, 2010] or, to the extent a provision of this subtitle requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of this subtitle."
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, except as otherwise provided, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Amendment by sections 13201(a) and 13203(a), (b) of Pub. L. 110–246 effective June 18, 2008, see section 13204(a) of Pub. L. 110–246, set out as a note under section 2 of this title.
Effective Date
Pub. L. 102–546, title IV, §403, Oct. 28, 1992, 106 Stat. 3625, provided that: "Except as otherwise specifically provided in this Act [enacting this section and section 12e of this title, amending sections 2, 2a, 4, 4a, 6 to 6c, 6e to 6g, 6j, 6p, 7 to 9a, 10a, 12, 12a, 12c, 13 to 13c, 15, 16, 18, 19, 21, and 25 of this title, repealing section 26 of this title, enacting provisions set out as notes under sections 1a, 4a, 6c, 6e, 6j, 6p, 7a, 13, 16a, 21, and 22 of this title, and repealing provisions set out as a note under section 4a of this title], this Act and the amendments made by this Act shall become effective on the date of enactment of this Act [Oct. 28, 1992]."
Other Authority
Pub. L. 111–203, title VII, §743, July 21, 2010, 124 Stat. 1735, provided that: "Unless otherwise provided by the amendments made by this subtitle [subtitle A (§§711–754) of title VII of Pub. L. 111–203, see Tables for classification], the amendments made by this subtitle do not divest any appropriate Federal banking agency, the Commodity Futures Trading Commission, the Securities and Exchange Commission, or other Federal or State agency of any authority derived from any other applicable law."
[For definitions of "appropriate Federal banking agency" and "State" as used in section 743 of Pub. L. 111–203, set out above, see section 5301 of Title 12, Banks and Banking.]
1 So in original. Probably should be followed by a semicolon.
2 See References in Text note below.
3 So in original. The semicolon probably should be preceded by an additional closing parenthesis.
4 See References in Text note below.
5 So in original. A third closing parenthesis probably should appear.
§1b. Requirements of Secretary of the Treasury regarding exemption of foreign exchange swaps and foreign exchange forwards from definition of the term "swap"
(a) Required considerations
In determining whether to exempt foreign exchange swaps and foreign exchange forwards from the definition of the term "swap", the Secretary of the Treasury (referred to in this section as the "Secretary") shall consider—
(1) whether the required trading and clearing of foreign exchange swaps and foreign exchange forwards would create systemic risk, lower transparency, or threaten the financial stability of the United States;
(2) whether foreign exchange swaps and foreign exchange forwards are already subject to a regulatory scheme that is materially comparable to that established by this chapter for other classes of swaps;
(3) the extent to which bank regulators of participants in the foreign exchange market provide adequate supervision, including capital and margin requirements;
(4) the extent of adequate payment and settlement systems; and
(5) the use of a potential exemption of foreign exchange swaps and foreign exchange forwards to evade otherwise applicable regulatory requirements.
(b) Determination
If the Secretary makes a determination to exempt foreign exchange swaps and foreign exchange forwards from the definition of the term "swap", the Secretary shall submit to the appropriate committees of Congress a determination that contains—
(1) an explanation regarding why foreign exchange swaps and foreign exchange forwards are qualitatively different from other classes of swaps in a way that would make the foreign exchange swaps and foreign exchange forwards ill-suited for regulation as swaps; and
(2) an identification of the objective differences of foreign exchange swaps and foreign exchange forwards with respect to standard swaps that warrant an exempted status.
(c) Effect of determination
A determination by the Secretary under subsection (b) shall not exempt any foreign exchange swaps and foreign exchange forwards traded on a designated contract market or swap execution facility from any applicable antifraud and antimanipulation provision under this chapter.1
(Sept. 21, 1922, ch. 369, §1b, as added Pub. L. 111–203, title VII, §722(h), July 21, 2010, 124 Stat. 1674.)
Editorial Notes
References in Text
This chapter, referred to in subsec. (c), was in the original "this title", and was translated as reading "this Act", meaning act Sept. 21, 1922, ch. 369, 42 Stat. 998, which is classified generally to this chapter, to reflect the probable intent of Congress, because act Sept. 21, 1922, does not contain titles.
Statutory Notes and Related Subsidiaries
Effective Date
Section effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as an Effective Date of 2010 Amendment note under section 1a of this title.
1 See References in Text note below.
§2. Jurisdiction of Commission; liability of principal for act of agent; Commodity Futures Trading Commission; transaction in interstate commerce
(a) Jurisdiction of Commission; Commodity Futures Trading Commission
(1) Jurisdiction of Commission
(A) In general
The Commission shall have exclusive jurisdiction, except to the extent otherwise provided in the Wall Street Transparency and Accountability Act of 2010 (including an amendment made by that Act) and subparagraphs (C), (D), and (I) of this paragraph and subsections (c) and (f), with respect to accounts, agreements (including any transaction which is of the character of, or is commonly known to the trade as, an "option", "privilege", "indemnity", "bid", "offer", "put", "call", "advance guaranty", or "decline guaranty"), and transactions involving swaps or contracts of sale of a commodity for future delivery (including significant price discovery contracts), traded or executed on a contract market designated pursuant to section 7 of this title or a swap execution facility pursuant to section 7b–3 of this title or any other board of trade, exchange, or market, and transactions subject to regulation by the Commission pursuant to section 23 of this title. Except as hereinabove provided, nothing contained in this section shall (I) supersede or limit the jurisdiction at any time conferred on the Securities and Exchange Commission or other regulatory authorities under the laws of the United States or of any State, or (II) restrict the Securities and Exchange Commission and such other authorities from carrying out their duties and responsibilities in accordance with such laws. Nothing in this section shall supersede or limit the jurisdiction conferred on courts of the United States or any State.
(B) Liability of principal for act of agent
The act, omission, or failure of any official, agent, or other person acting for any individual, association, partnership, corporation, or trust within the scope of his employment or office shall be deemed the act, omission, or failure of such individual, association, partnership, corporation, or trust, as well as of such official, agent, or other person.
(C) Designation of boards of trade as contract markets; contracts for future delivery; security futures products; filing with Board of Governors of Federal Reserve System; judicial review
Notwithstanding any other provision of law—
(i)(I) Except as provided in subclause (II), this chapter shall not apply to and the Commission shall have no jurisdiction to designate a board of trade as a contract market for any transaction whereby any party to such transaction acquires any put, call, or other option on one or more securities (as defined in section 77b(1) 1 of title 15 or section 3(a)(10) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(10)] on January 11, 1983), including any group or index of such securities, or any interest therein or based on the value thereof.
(II) This chapter shall apply to and the Commission shall have jurisdiction with respect to accounts, agreements, and transactions involving, and may permit the listing for trading pursuant to section 7a–2(c) of this title of, a put, call, or other option on 1 or more securities (as defined in section 77b(a)(1) of title 15 or section 3(a)(10) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(10)] on January 11, 1983), including any group or index of such securities, or any interest therein or based on the value thereof, that is exempted by the Securities and Exchange Commission pursuant to section 36(a)(1) of the Securities Exchange Act of 1934 [15 U.S.C. 78mm(a)(1)] with the condition that the Commission exercise concurrent jurisdiction over such put, call, or other option; provided, however, that nothing in this paragraph shall be construed to affect the jurisdiction and authority of the Securities and Exchange Commission over such put, call, or other option.
(ii) This chapter shall apply to and the Commission shall have exclusive jurisdiction with respect to accounts, agreements (including any transaction which is of the character of, or is commonly known to the trade as, an "option", "privilege", "indemnity", "bid", "offer", "put", "call", "advance guaranty", or "decline guaranty") and transactions involving, and may designate a board of trade as a contract market in, or register a derivatives transaction execution facility that trades or executes, contracts of sale (or options on such contracts) for future delivery of a group or index of securities (or any interest therein or based upon the value thereof): Provided, however, That no board of trade shall be designated as a contract market with respect to any such contracts of sale (or options on such contracts) for future delivery, and no derivatives transaction execution facility shall trade or execute such contracts of sale (or options on such contracts) for future delivery, unless the board of trade or the derivatives transaction execution facility, and the applicable contract, meet the following minimum requirements:
(I) Settlement of or delivery on such contract (or option on such contract) shall be effected in cash or by means other than the transfer or receipt of any security, except an exempted security under section 77c of title 15 or section 3(a)(12) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(12)] as in effect on January 11, 1983, (other than any municipal security, as defined in section 3(a)(29) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(29)] on January 11, 1983);
(II) Trading in such contract (or option on such contract) shall not be readily susceptible to manipulation of the price of such contract (or option on such contract), nor to causing or being used in the manipulation of the price of any underlying security, option on such security or option on a group or index including such securities; and
(III) Such group or index of securities shall not constitute a narrow-based security index.
(iii) If, in its discretion, the Commission determines that a stock index futures contract, notwithstanding its conformance with the requirements in clause (ii) of this subparagraph, can reasonably be used as a surrogate for trading a security (including a security futures product), it may, by order, require such contract and any option thereon be traded and regulated as security futures products as defined in section 3(a)(56) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(56)] and section 1a of this title subject to all rules and regulations applicable to security futures products under this chapter and the securities laws as defined in section 3(a)(47) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(47)].
(iv) No person shall offer to enter into, enter into, or confirm the execution of any contract of sale (or option on such contract) for future delivery of any security, or interest therein or based on the value thereof, except an exempted security under or 2 section 3(a)(12) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(12)] as in effect on January 11, 1983 (other than any municipal security as defined in section 3(a)(29) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(29)] on January 11, 1983), or except as provided in clause (ii) of this subparagraph or subparagraph (D), any group or index of such securities or any interest therein or based on the value thereof.
(v)(I) Notwithstanding any other provision of this chapter, any contract market in a stock index futures contract (or option thereon) other than a security futures product, or any derivatives transaction execution facility on which such contract or option is traded, shall file with the Board of Governors of the Federal Reserve System any rule establishing or changing the levels of margin (initial and maintenance) for such stock index futures contract (or option thereon) other than security futures products.
(II) The Board may at any time request any contract market or derivatives transaction execution facility to set the margin for any stock index futures contract (or option thereon), other than for any security futures product, at such levels as the Board in its judgment determines are appropriate to preserve the financial integrity of the contract market or derivatives transaction execution facility, or its clearing system, or to prevent systemic risk. If the contract market or derivatives transaction execution facility fails to do so within the time specified by the Board in its request, the Board may direct the contract market or derivatives transaction execution facility to alter or supplement the rules of the contract market or derivatives transaction execution facility as specified in the request.
(III) Subject to such conditions as the Board may determine, the Board may delegate any or all of its authority, relating to margin for any stock index futures contract (or option thereon), other than security futures products, under this clause to the Commission.
(IV) It shall be unlawful for any futures commission merchant to, directly or indirectly, extend or maintain credit to or for, or collect margin from any customer on any security futures product unless such activities comply with the regulations prescribed pursuant to section 7(c)(2)(B) of the Securities Exchange Act of 1934 [15 U.S.C. 78g(c)(2)(B)].
(V) Nothing in this clause shall supersede or limit the authority granted to the Commission in section 12a(9) of this title to direct a contract market or registered derivatives transaction execution facility, on finding an emergency to exist, to raise temporary margin levels on any futures contract, or option on the contract covered by this clause, or on any security futures product.
(VI) Any action taken by the Board, or by the Commission acting under the delegation of authority under subclause III,3 under this clause directing a contract market to alter or supplement a contract market rule shall be subject to review only in the Court of Appeals where the party seeking review resides or has its principal place of business, or in the United States Court of Appeals for the District of Columbia Circuit. The review shall be based on the examination of all information before the Board or the Commission, as the case may be, at the time the determination was made. The court reviewing the action of the Board or the Commission shall not enter a stay or order of mandamus unless the court has determined, after notice and a hearing before a panel of the court, that the agency action complained of was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
(D) Jurisdiction and authority of Securities and Exchange Commission over security futures; requirements for security futures trading; periodic or special examinations by Commission representatives
(i) Notwithstanding any other provision of this chapter, the Securities and Exchange Commission shall have jurisdiction and authority over security futures as defined in section 3(a)(55) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(55)], section 77b(a)(16) of title 15, section 80a–2(a)(52) of title 15, and section 80b–2(a)(27) of title 15, options on security futures, and persons effecting transactions in security futures and options thereon, and this chapter shall apply to and the Commission shall have jurisdiction with respect to accounts, agreements (including any transaction which is of the character of, or is commonly known to the trade as, an "option", "privilege", "indemnity", "bid", "offer", "put", "call", "advance guaranty", or "decline guaranty"), contracts, and transactions involving, and may designate a board of trade as a contract market in, or register a derivatives transaction execution facility that trades or executes, a security futures product as defined in section 1a of this title: Provided, however, That, except as provided in clause (vi) of this subparagraph, no board of trade shall be designated as a contract market with respect to, or registered as a derivatives transaction execution facility for, any such contracts of sale for future delivery unless the board of trade and the applicable contract meet the following criteria:
(I) Except as otherwise provided in a rule, regulation, or order issued pursuant to clause (v) of this subparagraph, any security underlying the security future, including each component security of a narrow-based security index, is registered pursuant to section 12 of the Securities Exchange Act of 1934 [15 U.S.C. 78l].
(II) If the security futures product is not cash settled, the board of trade on which the security futures product is traded has arrangements in place with a clearing agency registered pursuant to section 17A of the Securities Exchange Act of 1934 [15 U.S.C. 78q–1] for the payment and delivery of the securities underlying the security futures product.
(III) Except as otherwise provided in a rule, regulation, or order issued pursuant to clause (v) of this subparagraph, the security future is based upon common stock and such other equity securities as the Commission and the Securities and Exchange Commission jointly determine appropriate.
(IV) The security futures product is cleared by a clearing agency that has in place provisions for linked and coordinated clearing with other clearing agencies that clear security futures products, which permits the security futures product to be purchased on a designated contract market, registered derivatives transaction execution facility, national securities exchange registered under section 6(a) of the Securities Exchange Act of 1934 [15 U.S.C. 78f(a)], or national securities association registered pursuant to section 15A(a) of the Securities Exchange Act of 1934 [15 U.S.C. 78o–3(a)] and offset on another designated contract market, registered derivatives transaction execution facility, national securities exchange registered under section 6(a) of the Securities Exchange Act of 1934, or national securities association registered pursuant to section 15A(a) of the Securities Exchange Act of 1934.
(V) Only futures commission merchants, introducing brokers, commodity trading advisors, commodity pool operators or associated persons subject to suitability rules comparable to those of a national securities association registered pursuant to section 15A(a) of the Securities Exchange Act of 1934 [15 U.S.C. 78o–3(a)] solicit, accept any order for, or otherwise deal in any transaction in or in connection with the security futures product.
(VI) The security futures product is subject to a prohibition against dual trading in section 6j of this title and the rules and regulations thereunder or the provisions of section 11(a) of the Securities Exchange Act of 1934 [15 U.S.C. 78k(a)] and the rules and regulations thereunder, except to the extent otherwise permitted under the Securities Exchange Act of 1934 [15 U.S.C. 78a et seq.] and the rules and regulations thereunder.
(VII) Trading in the security futures product is not readily susceptible to manipulation of the price of such security futures product, nor to causing or being used in the manipulation of the price of any underlying security, option on such security, or option on a group or index including such securities;
(VIII) The board of trade on which the security futures product is traded has procedures in place for coordinated surveillance among such board of trade, any market on which any security underlying the security futures product is traded, and other markets on which any related security is traded to detect manipulation and insider trading, except that, if the board of trade is an alternative trading system, a national securities association registered pursuant to section 15A(a) of the Securities Exchange Act of 1934 [15 U.S.C. 78o–3(a)] or national securities exchange registered pursuant to section 6(a) of the Securities Exchange Act of 1934 [15 U.S.C. 78f(a)] of which such alternative trading system is a member has in place such procedures.
(IX) The board of trade on which the security futures product is traded has in place audit trails necessary or appropriate to facilitate the coordinated surveillance required in subclause (VIII), except that, if the board of trade is an alternative trading system, a national securities association registered pursuant to section 15A(a) of the Securities Exchange Act of 1934 [15 U.S.C. 78o–3(a)] or national securities exchange registered pursuant to section 6(a) of the Securities Exchange Act of 1934 [15 U.S.C. 78f(a)] of which such alternative trading system is a member has rules to require such audit trails.
(X) The board of trade on which the security futures product is traded has in place procedures to coordinate trading halts between such board of trade and markets on which any security underlying the security futures product is traded and other markets on which any related security is traded, except that, if the board of trade is an alternative trading system, a national securities association registered pursuant to section 15A(a) of the Securities Exchange Act of 1934 [15 U.S.C. 78o–3(a)] or national securities exchange registered pursuant to section 6(a) of the Securities Exchange Act of 1934 [15 U.S.C. 78f(a)] of which such alternative trading system is a member has rules to require such coordinated trading halts.
(XI) The margin requirements for a security futures product comply with the regulations prescribed pursuant to section 7(c)(2)(B) of the Securities Exchange Act of 1934 [15 U.S.C. 78g(c)(2)(B)], except that nothing in this subclause shall be construed to prevent a board of trade from requiring higher margin levels for a security futures product when it deems such action to be necessary or appropriate.
(ii) It shall be unlawful for any person to offer, to enter into, to execute, to confirm the execution of, or to conduct any office or business anywhere in the United States, its territories or possessions, for the purpose of soliciting, or accepting any order for, or otherwise dealing in, any transaction in, or in connection with, a security futures product unless—
(I) the transaction is conducted on or subject to the rules of a board of trade that—
(aa) has been designated by the Commission as a contract market in such security futures product; or
(bb) is a registered derivatives transaction execution facility for the security futures product that has provided a certification with respect to the security futures product pursuant to clause (vii);
(II) the contract is executed or consummated by, through, or with a member of the contract market or registered derivatives transaction execution facility; and
(III) the security futures product is evidenced by a record in writing which shows the date, the parties to such security futures product and their addresses, the property covered, and its price, and each contract market member or registered derivatives transaction execution facility member shall keep the record for a period of 3 years from the date of the transaction, or for a longer period if the Commission so directs, which record shall at all times be open to the inspection of any duly authorized representative of the Commission.
(iii)(I) Except as provided in subclause (II) but notwithstanding any other provision of this chapter, no person shall offer to enter into, enter into, or confirm the execution of any option on a security future.
(II) After 3 years after December 21, 2000, the Commission and the Securities and Exchange Commission may by order jointly determine to permit trading of options on any security future authorized to be traded under the provisions of this chapter and the Securities Exchange Act of 1934 [15 U.S.C. 78a et seq.].
(iv)(I) All relevant records of a futures commission merchant or introducing broker registered pursuant to section 6f(a)(2) of this title, floor broker or floor trader exempt from registration pursuant to section 6f(a)(3) of this title, associated person exempt from registration pursuant to section 6k(6) of this title, or board of trade designated as a contract market in a security futures product pursuant to section 7b–1 of this title shall be subject to such reasonable periodic or special examinations by representatives of the Commission as the Commission deems necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of this chapter, and the Commission, before conducting any such examination, shall give notice to the Securities and Exchange Commission of the proposed examination and consult with the Securities and Exchange Commission concerning the feasibility and desirability of coordinating the examination with examinations conducted by the Securities and Exchange Commission in order to avoid unnecessary regulatory duplication or undue regulatory burdens for the registrant or board of trade.
(II) The Commission shall notify the Securities and Exchange Commission of any examination conducted of any futures commission merchant or introducing broker registered pursuant to section 6f(a)(2) of this title, floor broker or floor trader exempt from registration pursuant to section 6f(a)(3) of this title, associated person exempt from registration pursuant to section 6k(6) of this title, or board of trade designated as a contract market in a security futures product pursuant to section 7b–1 of this title, and, upon request, furnish to the Securities and Exchange Commission any examination report and data supplied to or prepared by the Commission in connection with the examination.
(III) Before conducting an examination under subclause (I), the Commission shall use the reports of examinations, unless the information sought is unavailable in the reports, of any futures commission merchant or introducing broker registered pursuant to section 6f(a)(2) of this title, floor broker or floor trader exempt from registration pursuant to section 6f(a)(3) of this title, associated person exempt from registration pursuant to section 6k(6) of this title, or board of trade designated as a contract market in a security futures product pursuant to section 7b–1 of this title that is made by the Securities and Exchange Commission, a national securities association registered pursuant to section 15A(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78o–3(a)), or a national securities exchange registered pursuant to section 6(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78f(a)).
(IV) Any records required under this subsection for a futures commission merchant or introducing broker registered pursuant to section 6f(a)(2) of this title, floor broker or floor trader exempt from registration pursuant to section 6f(a)(3) of this title, associated person exempt from registration pursuant to section 6k(6) of this title, or board of trade designated as a contract market in a security futures product pursuant to section 7b–1 of this title, shall be limited to records with respect to accounts, agreements, contracts, and transactions involving security futures products.
(v)(I) The Commission and the Securities and Exchange Commission, by rule, regulation, or order, may jointly modify the criteria specified in subclause (I) or (III) of clause (i), including the trading of security futures based on securities other than equity securities, to the extent such modification fosters the development of fair and orderly markets in security futures products, is necessary or appropriate in the public interest, and is consistent with the protection of investors.
(II) The Commission and the Securities and Exchange Commission, by order, may jointly exempt any person from compliance with the criterion specified in clause (i)(IV) to the extent such exemption fosters the development of fair and orderly markets in security futures products, is necessary or appropriate in the public interest, and is consistent with the protection of investors.
(vi)(I) Notwithstanding clauses (i) and (vii), until the compliance date, a board of trade shall not be required to meet the criterion specified in clause (i)(IV).
(II) The Commission and the Securities and Exchange Commission shall jointly publish in the Federal Register a notice of the compliance date no later than 165 days before the compliance date.
(III) For purposes of this clause, the term "compliance date" means the later of—
(aa) 180 days after the end of the first full calendar month period in which the average aggregate comparable share volume for all security futures products based on single equity securities traded on all designated contract markets and registered derivatives transaction execution facilities equals or exceeds 10 percent of the average aggregate comparable share volume of options on single equity securities traded on all national securities exchanges registered pursuant to section 6(a) of the Securities Exchange Act of 1934 [15 U.S.C. 78f(a)] and any national securities associations registered pursuant to section 15A(a) of such Act [15 U.S.C. 78o–3(a)]; or
(bb) 2 years after the date on which trading in any security futures product commences under this chapter.
(vii) It shall be unlawful for a board of trade to trade or execute a security futures product unless the board of trade has provided the Commission with a certification that the specific security futures product and the board of trade, as applicable, meet the criteria specified in subclauses (I) through (XI) of clause (i), except as otherwise provided in clause (vi).
(E) Obligation to address security futures products traded on foreign exchanges
(i) To the extent necessary or appropriate in the public interest, to promote fair competition, and consistent with promotion of market efficiency, innovation, and expansion of investment opportunities, the protection of investors, and the maintenance of fair and orderly markets, the Commission and the Securities and Exchange Commission shall jointly issue such rules, regulations, or orders as are necessary and appropriate to permit the offer and sale of a security futures product traded on or subject to the rules of a foreign board of trade to United States persons.
(ii) The rules, regulations, or orders adopted under clause (i) shall take into account, as appropriate, the nature and size of the markets that the securities underlying the security futures product reflects.
(F) Security futures products traded on foreign boards of trade
(i) Nothing in this chapter is intended to prohibit a futures commission merchant from carrying security futures products traded on or subject to the rules of a foreign board of trade in the accounts of persons located outside of the United States.
(ii) Nothing in this chapter is intended to prohibit any eligible contract participant located in the United States from purchasing or carrying securities futures products traded on or subject to the rules of a foreign board of trade, exchange, or market to the same extent such person may be authorized to purchase or carry other securities traded on a foreign board of trade, exchange, or market so long as any underlying security for such security futures products is traded principally on, by, or through any exchange or market located outside the United States.
(G)(i) Nothing in this paragraph shall limit the jurisdiction conferred on the Securities and Exchange Commission by the Wall Street Transparency and Accountability Act of 2010 with regard to security-based swap agreements as defined pursuant to section 3(a)(78) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(78)], and security-based swaps.
(ii) In addition to the authority of the Securities and Exchange Commission described in clause (i), nothing in this subparagraph shall limit or affect any statutory authority of the Commission with respect to an agreement, contract, or transaction described in clause (i).
(H) Notwithstanding any other provision of law, the Wall Street Transparency and Accountability Act of 2010 shall not apply to, and the Commodity Futures Trading Commission shall have no jurisdiction under such Act (or any amendments to this chapter made by such Act) with respect to, any security other than a security-based swap.
(I)(i) Nothing in this chapter shall limit or affect any statutory authority of the Federal Energy Regulatory Commission or a State regulatory authority (as defined in section 796(21) of title 16) with respect to an agreement, contract, or transaction that is entered into pursuant to a tariff or rate schedule approved by the Federal Energy Regulatory Commission or a State regulatory authority and is—
(I) not executed, traded, or cleared on a registered entity or trading facility; or
(II) executed, traded, or cleared on a registered entity or trading facility owned or operated by a regional transmission organization or independent system operator.
(ii) In addition to the authority of the Federal Energy Regulatory Commission or a State regulatory authority described in clause (i), nothing in this subparagraph shall limit or affect—
(I) any statutory authority of the Commission with respect to an agreement, contract, or transaction described in clause (i); or
(II) the jurisdiction of the Commission under subparagraph (A) with respect to an agreement, contract, or transaction that is executed, traded, or cleared on a registered entity or trading facility that is not owned or operated by a regional transmission organization or independent system operator (as defined by sections 4 796(27) and (28) of title 16).
(2) Establishment of Commodity Futures Trading Commission; composition; terms of Commissioners
(A) There is hereby established, as an independent agency of the United States Government, a Commodity Futures Trading Commission. The Commission shall be composed of five Commissioners who shall be appointed by the President, by and with the advice and consent of the Senate. In nominating persons for appointment, the President shall—
(i) select persons who shall each have demonstrated knowledge in futures trading or its regulation, or the production, merchandising, processing or distribution of one or more of the commodities or other goods and articles, services, rights, and interests covered by this chapter; and
(ii) seek to ensure that the demonstrated knowledge of the Commissioners is balanced with respect to such areas.
Not more than three of the members of the Commission shall be members of the same political party. Each Commissioner shall hold office for a term of five years and until his successor is appointed and has qualified, except that he shall not so continue to serve beyond the expiration of the next session of Congress subsequent to the expiration of said fixed term of office, and except (i) any Commissioner appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed shall be appointed for the remainder of such term, and (ii) the terms of office of the Commissioners first taking office after the enactment of this paragraph shall expire as designated by the President at the time of nomination, one at the end of one year, one at the end of two years, one at the end of three years, one at the end of four years, and one at the end of five years.
(B) The President shall appoint, by and with the advice and consent of the Senate, a member of the Commission as Chairman, who shall serve as Chairman at the pleasure of the President. An individual may be appointed as Chairman at the same time that person is appointed as a Commissioner. The Chairman shall be the chief administrative officer of the Commission and shall preside at hearings before the Commission. At any time, the President may appoint, by and with the advice and consent of the Senate, a different Chairman, and the Commissioner previously appointed as Chairman may complete that Commissioner's term as a Commissioner.
(3) Vacancies
A vacancy in the Commission shall not impair the right of the remaining Commissioners to exercise all the powers of the Commission.
(4) General Counsel
The Commission shall have a General Counsel, who shall be appointed by the Commission and serve at the pleasure of the Commission. The General Counsel shall report directly to the Commission and serve as its legal advisor. The Commission shall appoint such other attorneys as may be necessary, in the opinion of the Commission, to assist the General Counsel, represent the Commission in all disciplinary proceedings pending before it, represent the Commission in courts of law whenever appropriate, assist the Department of Justice in handling litigation concerning the Commission in courts of law, and perform such other legal duties and functions as the Commission may direct.
(5) Executive Director
The Commission shall have an Executive Director, who shall be appointed by the Commission and serve at the pleasure of the Commission. The Executive Director shall report directly to the Commission and perform such functions and duties as the Commission may prescribe.
(6) Powers and Functions of Chairman
(A) Except as otherwise provided in this paragraph and in paragraphs (4) and (5) of this subsection, the executive and administrative functions of the Commission, including functions of the Commission with respect to the appointment and supervision of personnel employed under the Commission, the distribution of business among such personnel and among administrative units of the Commission, and the use and expenditure of funds, according to budget categories, plans, programs, and priorities established and approved by the Commission, shall be exercised solely by the Chairman.
(B) In carrying out any of his functions under the provisions of this paragraph, the Chairman shall be governed by general policies, plans, priorities, and budgets approved by the Commission and by such regulatory decisions, findings, and determination as the Commission may by law be authorized to make.
(C) The appointment by the Chairman of the heads of major administrative units under the Commission shall be subject to the approval of the Commission.
(D) Personnel employed regularly and full time in the immediate offices of Commissioners other than the Chairman shall not be affected by the provisions of this paragraph.
(E) There are hereby reserved to the Commission its functions with respect to revising budget estimates and with respect to determining the distribution of appropriated funds according to major programs and purposes.
(F) The Chairman may from time to time make such provisions as he shall deem appropriate authorizing the performance by any officer, employee, or administrative unit under his jurisdiction of any functions of the Chairman under this paragraph.
(7) Appointment and compensation
(A) In general
The Commission may appoint and fix the compensation of such officers, attorneys, economists, examiners, and other employees as may be necessary for carrying out the functions of the Commission under this chapter.
(B) Rates of pay
Rates of basic pay for all employees of the Commission may be set and adjusted by the Commission without regard to chapter 51 or subchapter III of chapter 53 of title 5.
(C) Comparability
(i) In general
The Commission may provide additional compensation and benefits to employees of the Commission if the same type of compensation or benefits are provided by any agency referred to in section 1833b(a) of title 12 or could be provided by such an agency under applicable provisions of law (including rules and regulations).
(ii) Consultation
In setting and adjusting the total amount of compensation and benefits for employees, the Commission shall consult with, and seek to maintain comparability with, the agencies referred to in section 1833b(a) of title 12.
(8) Conflict of interest
No Commissioner or employee of the Commission shall accept employment or compensation from any person, exchange, or clearinghouse subject to regulation by the Commission under this chapter during his term of office, nor shall he participate, directly or indirectly, in any registered entity operations or transactions of a character subject to regulation by the Commission.
(9) Liaison with Department of Agriculture; communications with Department of the Treasury, Federal Reserve Board, and Securities and Exchange Commission; application by a board of trade for designation as a contract market for future delivery of securities
(A) The Commission shall, in cooperation with the Secretary of Agriculture, maintain a liaison between the Commission and the Department of Agriculture. The Secretary shall take such steps as may be necessary to enable the Commission to obtain information and utilize such services and facilities of the Department of Agriculture as may be necessary in order to maintain effectively such liaison. In addition, the Secretary shall appoint a liaison officer, who shall be an employee of the Office of the Secretary, for the purpose of maintaining a liaison between the Department of Agriculture and the Commission. The Commission shall furnish such liaison officer appropriate office space within the offices of the Commission and shall allow such liaison officer to attend and observe all deliberations and proceedings of the Commission.
(B)(i) The Commission shall maintain communications with the Department of the Treasury, the Board of Governors of the Federal Reserve System, and the Securities and Exchange Commission for the purpose of keeping such agencies fully informed of Commission activities that relate to the responsibilities of those agencies, for the purpose of seeking the views of those agencies on such activities, and for considering the relationships between the volume and nature of investment and trading in contracts of sale of a commodity for future delivery and in securities and financial instruments under the jurisdiction of such agencies.
(ii) When a board of trade applies for designation or registration as a contract market or derivatives transaction execution facility involving transactions for future delivery of any security issued or guaranteed by the United States or any agency thereof, the Commission shall promptly deliver a copy of such application to the Department of the Treasury and the Board of Governors of the Federal Reserve System. The Commission may not designate or register a board of trade as a contract market or derivatives transaction execution facility based on such application until forty-five days after the date the Commission delivers the application to such agencies or until the Commission receives comments from each of such agencies on the application, whichever period is shorter. Any comments received by the Commission from such agencies shall be included as part of the public record of the Commission's designation proceeding. In designating, registering, or refusing, suspending, or revoking the designation or registration of, a board of trade as a contract market or derivatives transaction execution facility involving transactions for future delivery referred to in this clause or in considering any possible action under this chapter (including without limitation emergency action under section 12a(9) of this title) with respect to such transactions, the Commission shall take into consideration all comments it receives from the Department of the Treasury and the Board of Governors of the Federal Reserve System and shall consider the effect that any such designation, registration, suspension, revocation, or action may have on the debt financing requirements of the United States Government and the continued efficiency and integrity of the underlying market for government securities.
(iii) The provisions of this subparagraph shall not create any rights, liabilities, or obligations upon which actions may be brought against the Commission.
(10) Transmittal of budget requests and legislative recommendations to congressional committees
(A) Whenever the Commission submits any budget estimate or request to the President or the Office of Management and Budget, it shall concurrently transmit copies of that estimate or request to the House and Senate Appropriations Committees and the House Committee on Agriculture and the Senate Committee on Agriculture, Nutrition, and Forestry.
(B) Whenever the Commission transmits any legislative recommendations, or testimony, or comments on legislation to the President or the Office of Management and Budget, it shall concurrently transmit copies thereof to the House Committee on Agriculture and the Senate Committee on Agriculture, Nutrition, and Forestry. No officer or agency of the United States shall have any authority to require the Commission to submit its legislative recommendations, or testimony, or comments on legislation to any officer or agency of the United States for approval, comments, or review, prior to the submission of such recommendations, testimony, or comments to the Congress. In instances in which the Commission voluntarily seeks to obtain the comments or review of any officer or agency of the United States, the Commission shall include a description of such actions in its legislative recommendations, testimony, or comments on legislation which it transmits to the Congress.
(C) Whenever the Commission issues for official publication any opinion, release, rule, order, interpretation, or other determination on a matter, the Commission shall provide that any dissenting, concurring, or separate opinion by any Commissioner on the matter be published in full along with the Commission opinion, release, rule, order, interpretation, or determination.
(11) Seal
The Commission shall have an official seal, which shall be judicially noticed.
(12) Rules and regulations
The Commission is authorized to promulgate such rules and regulations as it deems necessary to govern the operating procedures and conduct of the business of the Commission.
(13) Public availability of swap transaction data
(A) Definition of real-time public reporting
In this paragraph, the term "real-time public reporting" means to report data relating to a swap transaction, including price and volume, as soon as technologically practicable after the time at which the swap transaction has been executed.
(B) Purpose
The purpose of this section is to authorize the Commission to make swap transaction and pricing data available to the public in such form and at such times as the Commission determines appropriate to enhance price discovery.
(C) General rule
The Commission is authorized and required to provide by rule for the public availability of swap transaction and pricing data as follows:
(i) With respect to those swaps that are subject to the mandatory clearing requirement described in subsection (h)(1) (including those swaps that are excepted from the requirement pursuant to subsection (h)(7)), the Commission shall require real-time public reporting for such transactions.
(ii) With respect to those swaps that are not subject to the mandatory clearing requirement described in subsection (h)(1), but are cleared at a registered derivatives clearing organization, the Commission shall require real-time public reporting for such transactions.
(iii) With respect to swaps that are not cleared at a registered derivatives clearing organization and which are reported to a swap data repository or the Commission under subsection (h)(6), the Commission shall require real-time public reporting for such transactions, in a manner that does not disclose the business transactions and market positions of any person.
(iv) With respect to swaps that are determined to be required to be cleared under subsection (h)(2) but are not cleared, the Commission shall require real-time public reporting for such transactions.
(D) Registered entities and public reporting
The Commission may require registered entities to publicly disseminate the swap transaction and pricing data required to be reported under this paragraph.
(E) Rulemaking required
With respect to the rule providing for the public availability of transaction and pricing data for swaps described in clauses (i) and (ii) of subparagraph (C), the rule promulgated by the Commission shall contain provisions—
(i) to ensure such information does not identify the participants;
(ii) to specify the criteria for determining what constitutes a large notional swap transaction (block trade) for particular markets and contracts;
(iii) to specify the appropriate time delay for reporting large notional swap transactions (block trades) to the public; and
(iv) that take into account whether the public disclosure will materially reduce market liquidity.
(F) Timeliness of reporting
Parties to a swap (including agents of the parties to a swap) shall be responsible for reporting swap transaction information to the appropriate registered entity in a timely manner as may be prescribed by the Commission.
(G) Reporting of swaps to registered swap data repositories
Each swap (whether cleared or uncleared) shall be reported to a registered swap data repository.
(14) Semiannual and annual public reporting of aggregate swap data
(A) In general
In accordance with subparagraph (B), the Commission shall issue a written report on a semiannual and annual basis to make available to the public information relating to—
(i) the trading and clearing in the major swap categories; and
(ii) the market participants and developments in new products.
(B) Use; consultation
In preparing a report under subparagraph (A), the Commission shall—
(i) use information from swap data repositories and derivatives clearing organizations; and
(ii) consult with the Office of the Comptroller of the Currency, the Bank for International Settlements, and such other regulatory bodies as may be necessary.
(C) Authority of the Commission
The Commission may, by rule, regulation, or order, delegate the public reporting responsibilities of the Commission under this paragraph in accordance with such terms and conditions as the Commission determines to be appropriate and in the public interest.
(15) Energy and Environmental Markets Advisory Committee
(A) Establishment
(i) In general
An Energy and Environmental Markets Advisory Committee is hereby established.
(ii) Membership
The Committee shall have 9 members.
(iii) Activities
The Committee's objectives and scope of activities shall be—
(I) to conduct public meetings;
(II) to submit reports and recommendations to the Commission (including dissenting or minority views, if any); and
(III) otherwise to serve as a vehicle for discussion and communication on matters of concern to exchanges, firms, end users, and regulators regarding energy and environmental markets and their regulation by the Commission.
(B) Requirements
(i) In general
The Committee shall hold public meetings at such intervals as are necessary to carry out the functions of the Committee, but not less frequently than 2 times per year.
(ii) Members
Members shall be appointed to 3-year terms, but may be removed for cause by vote of the Commission.
(C) Appointment
The Commission shall appoint members with a wide diversity of opinion and who represent a broad spectrum of interests, including hedgers and consumers.
(D) Reimbursement
Members shall be entitled to per diem and travel expense reimbursement by the Commission.
(E) Chapter 10 of title 5
The Committee shall not be subject to chapter 10 of title 5.
(b) Transaction in interstate commerce
For the purposes of this chapter (but not in any wise limiting the foregoing definition of interstate commerce) a transaction in respect to any article shall be considered to be in interstate commerce if such article is part of that current of commerce usual in the commodity trade whereby commodities and commodity products and by-products thereof are sent from one State, with the expectation that they will end their transit, after purchase, in another, including in addition to cases within the above general description, all cases where purchase or sale is either for shipment to another State, or for manufacture within the State and the shipment outside the State of the products resulting from such manufacture. Articles normally in such current of commerce shall not be considered out of such commerce through resort being had to any means or device intended to remove transactions in respect thereto from the provisions of this chapter. For the purpose of this paragraph the word "State" includes Territory, the District of Columbia, possession of the United States, and foreign nation.
(c) Agreements, contracts, and transactions in foreign currency, government securities, and certain other commodities
(1) In general
Except as provided in paragraph (2), nothing in this chapter (other than section,5 7a–1,5 or 16(e)(2)(B) of this title) governs or applies to an agreement, contract, or transaction in—
(A) foreign currency;
(B) government securities;
(C) security warrants;
(D) security rights;
(E) resales of installment loan contracts;
(F) repurchase transactions in an excluded commodity; or
(G) mortgages or mortgage purchase commitments.
(2) Commission jurisdiction
(A) Agreements, contracts, and transactions traded on an organized exchange
This chapter applies to, and the Commission shall have jurisdiction over, an agreement, contract, or transaction described in paragraph (1) that is—
(i) a contract of sale of a commodity for future delivery (or an option on such a contract), or an option on a commodity (other than foreign currency or a security or a group or index of securities), that is executed or traded on an organized exchange;
(ii) a swap; or
(iii) an option on foreign currency executed or traded on an organized exchange that is not a national securities exchange registered pursuant to section 6(a) of the Securities Exchange Act of 1934 [15 U.S.C. 78f(a)].
(B) Agreements, contracts, and transactions in retail foreign currency
(i) This chapter applies to, and the Commission shall have jurisdiction over, an agreement, contract, or transaction in foreign currency that—
(I) is a contract of sale of a commodity for future delivery (or an option on such a contract) or an option (other than an option executed or traded on a national securities exchange registered pursuant to section 6(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78f(a))); and
(II) is offered to, or entered into with, a person that is not an eligible contract participant, unless the counterparty, or the person offering to be the counterparty, of the person is—
(aa) a United States financial institution;
(bb)(AA) a broker or dealer registered under section 15(b) (except paragraph (11) thereof) or 15C of the Securities Exchange Act of 1934 (15 U.S.C. 78o(b), 78o–5); or
(BB) an associated person of a broker or dealer registered under section 15(b) (except paragraph (11) thereof) or 15C of the Securities Exchange Act of 1934 (15 U.S.C. 78o(b), 78o–5) concerning the financial or securities activities of which the broker or dealer makes and keeps records under section 15C(b) or 17(h) of the Securities Exchange Act of 1934 (15 U.S.C. 78o–5(b), 78q(h));
(cc)(AA) a futures commission merchant that is primarily or substantially engaged in the business activities described in section 1a of this title, is registered under this chapter, is not a person described in item (bb) of this subclause, and maintains adjusted net capital equal to or in excess of the dollar amount that applies for purposes of clause (ii) of this subparagraph; or
(BB) an affiliated person of a futures commission merchant that is primarily or substantially engaged in the business activities described in section 1a of this title, is registered under this chapter, and is not a person described in item (bb) of this subclause, if the affiliated person maintains adjusted net capital equal to or in excess of the dollar amount that applies for purposes of clause (ii) of this subparagraph and is not a person described in such item (bb), and the futures commission merchant makes and keeps records under section 6f(c)(2)(B) of this title concerning the futures and other financial activities of the affiliated person;
(dd) a financial holding company (as defined in section 1841 of title 12); or
(ff) 6 a retail foreign exchange dealer that maintains adjusted net capital equal to or in excess of the dollar amount that applies for purposes of clause (ii) of this subparagraph and is registered in such capacity with the Commission, subject to such terms and conditions as the Commission shall prescribe, and is a member of a futures association registered under section 21 of this title.
(ii) The dollar amount that applies for purposes of this clause is—
(I) $10,000,000, beginning 120 days after the date of the enactment of this clause;
(II) $15,000,000, beginning 240 days after such date of enactment; and
(III) $20,000,000, beginning 360 days after such date of enactment.
(iii) Notwithstanding items (cc) and (gg) of clause (i)(II) of this subparagraph, agreements, contracts, or transactions described in clause (i) of this subparagraph, and accounts or pooled investment vehicles described in clause (vi), shall be subject to subsection (a)(1)(B) of this section and sections 6(b), 6b, 6c(b), 6o, 9, and 13b of this title (except to the extent that sections 9 and 13b of this title prohibit manipulation of the market price of any commodity in interstate commerce, or for future delivery on or subject to the rules of any market), 13a–1, 13a–2, 12(a), 13c(a), and 13c(b) of this title if the agreements, contracts, or transactions are offered, or entered into, by a person that is registered as a futures commission merchant or retail foreign exchange dealer, or an affiliated person of a futures commission merchant registered under this chapter that is not also a person described in any of item (aa), (bb), (ee),1 or (ff) of clause (i)(II) of this subparagraph.
(iv)(I) Notwithstanding items (cc) and (gg) 1 of clause (i)(II), a person, unless registered in such capacity as the Commission by rule, regulation, or order shall determine and a member of a futures association registered under section 21 of this title, shall not—
(aa) solicit or accept orders from any person that is not an eligible contract participant in connection with agreements, contracts, or transactions described in clause (i) entered into with or to be entered into with a person who is not described in item (aa), (bb), (ee),1 or (ff) of clause (i)(II);
(bb) exercise discretionary trading authority or obtain written authorization to exercise discretionary trading authority over any account for or on behalf of any person that is not an eligible contract participant in connection with agreements, contracts, or transactions described in clause (i) entered into with or to be entered into with a person who is not described in item (aa), (bb), (ee),1 or (ff) of clause (i)(II); or
(cc) operate or solicit funds, securities, or property for any pooled investment vehicle that is not an eligible contract participant in connection with agreements, contracts, or transactions described in clause (i) entered into with or to be entered into with a person who is not described in item (aa), (bb), (ee),1 or (ff) of clause (i)(II).
(II) Subclause (I) of this clause shall not apply to—
(aa) any person described in any of item (aa), (bb), (ee),1 or (ff) of clause (i)(II);
(bb) any such person's associated persons; or
(cc) any person who would be exempt from registration if engaging in the same activities in connection with transactions conducted on or subject to the rules of a contract market or a derivatives transaction execution facility.
(III) Notwithstanding items (cc) and (gg) 1 of clause (i)(II), the Commission may make, promulgate, and enforce such rules and regulations as, in the judgment of the Commission, are reasonably necessary to effectuate any of the provisions of, or to accomplish any of the purposes of, this chapter in connection with the activities of persons subject to subclause (I).
(IV) Subclause (III) of this clause shall not apply to—
(aa) any person described in any of item (aa) through (ff) of clause (i)(II);
(bb) any such person's associated persons; or
(cc) any person who would be exempt from registration if engaging in the same activities in connection with transactions conducted on or subject to the rules of a contract market or a derivatives transaction execution facility.
(v) Notwithstanding items (cc) and (gg) 1 of clause (i)(II), the Commission may make, promulgate, and enforce such rules and regulations as, in the judgment of the Commission, are reasonably necessary to effectuate any of the provisions of, or to accomplish any of the purposes of, this chapter in connection with agreements, contracts, or transactions described in clause (i) which are offered, or entered into, by a person described in item (cc) or (gg) 1 of clause (i)(II).
(vi) This chapter applies to, and the Commission shall have jurisdiction over, an account or pooled investment vehicle that is offered for the purpose of trading, or that trades, any agreement, contract, or transaction in foreign currency described in clause (i).
(C)(i)(I) This subparagraph shall apply to any agreement, contract, or transaction in foreign currency that is—
(aa) offered to, or entered into with, a person that is not an eligible contract participant (except that this subparagraph shall not apply if the counterparty, or the person offering to be the counterparty, of the person that is not an eligible contract participant is a person described in any of item (aa), (bb), (ee),1 or (ff) of subparagraph (B)(i)(II)); and
(bb) offered, or entered into, on a leveraged or margined basis, or financed by the offeror, the counterparty, or a person acting in concert with the offeror or counterparty on a similar basis.
(II) Subclause (I) of this clause shall not apply to—
(aa) a security that is not a security futures product; or
(bb) a contract of sale that—
(AA) results in actual delivery within 2 days; or
(BB) creates an enforceable obligation to deliver between a seller and buyer that have the ability to deliver and accept delivery, respectively, in connection with their line of business.
(ii)(I) Agreements, contracts, or transactions described in clause (i) of this subparagraph, and accounts or pooled investment vehicles described in clause (vii), shall be subject to subsection (a)(1)(B) of this section and sections 6(b), 6b, 6c(b), 6o, 9, and 13b of this title (except to the extent that sections 9 and 13b of this title prohibit manipulation of the market price of any commodity in interstate commerce, or for future delivery on or subject to the rules of any market), 13a–1, 13a–2, 12(a), 13c(a), and 13c(b) of this title.
(II) Subclause (I) of this clause shall not apply to—
(aa) any person described in any of item (aa), (bb), (ee),1 or (ff) of subparagraph (B)(i)(II); or
(bb) any such person's associated persons.
(III) The Commission may make, promulgate, and enforce such rules and regulations as, in the judgment of the Commission, are reasonably necessary to effectuate any of the provisions of or to accomplish any of the purposes of this chapter in connection with agreements, contracts, or transactions described in clause (i) of this subparagraph if the agreements, contracts, or transactions are offered, or entered into, by a person that is not described in item (aa) through (ff) of subparagraph (B)(i)(II).
(iii)(I) A person, unless registered in such capacity as the Commission by rule, regulation, or order shall determine and a member of a futures association registered under section 21 of this title, shall not—
(aa) solicit or accept orders from any person that is not an eligible contract participant in connection with agreements, contracts, or transactions described in clause (i) of this subparagraph entered into with or to be entered into with a person who is not described in item (aa), (bb), (ee),1 or (ff) of subparagraph (B)(i)(II);
(bb) exercise discretionary trading authority or obtain written authorization to exercise written trading authority over any account for or on behalf of any person that is not an eligible contract participant in connection with agreements, contracts, or transactions described in clause (i) of this subparagraph entered into with or to be entered into with a person who is not described in item (aa), (bb), (ee),1 or (ff) of subparagraph (B)(i)(II); or
(cc) operate or solicit funds, securities, or property for any pooled investment vehicle that is not an eligible contract participant in connection with agreements, contracts, or transactions described in clause (i) of this subparagraph entered into with or to be entered into with a person who is not described in item (aa), (bb), (ee),1 or (ff) of subparagraph (B)(i)(II).
(II) Subclause (I) of this clause shall not apply to—
(aa) any person described in item (aa), (bb), (ee),1 or (ff) of subparagraph (B)(i)(II);
(bb) any such person's associated persons; or
(cc) any person who would be exempt from registration if engaging in the same activities in connection with transactions conducted on or subject to the rules of a contract market or a derivatives transaction execution facility.
(III) The Commission may make, promulgate, and enforce such rules and regulations as, in the judgment of the Commission, are reasonably necessary to effectuate any of the provisions of, or to accomplish any of the purposes of, this chapter in connection with the activities of persons subject to subclause (I).
(IV) Subclause (III) of this clause shall not apply to—
(aa) any person described in item (aa) through (ff) of subparagraph (B)(i)(II);
(bb) any such person's associated persons; or
(cc) any person who would be exempt from registration if engaging in the same activities in connection with transactions conducted on or subject to the rules of a contract market or a derivatives transaction execution facility.
(iv) Sections 6(b) and 6b of this title shall apply to any agreement, contract, or transaction described in clause (i) of this subparagraph as if the agreement, contract, or transaction were a contract of sale of a commodity for future delivery.
(v) This subparagraph shall not be construed to limit any jurisdiction that the Commission may otherwise have under any other provision of this chapter over an agreement, contract, or transaction that is a contract of sale of a commodity for future delivery.
(vi) This subparagraph shall not be construed to limit any jurisdiction that the Commission or the Securities and Exchange Commission may otherwise have under any other provision of this chapter with respect to security futures products and persons effecting transactions in security futures products.
(vii) This chapter applies to, and the Commission shall have jurisdiction over, an account or pooled investment vehicle that is offered for the purpose of trading, or that trades, any agreement, contract, or transaction in foreign currency described in clause (i).
(D) Retail commodity transactions
(i) Applicability
Except as provided in clause (ii), this subparagraph shall apply to any agreement, contract, or transaction in any commodity that is—
(I) entered into with, or offered to (even if not entered into with), a person that is not an eligible contract participant or eligible commercial entity; and
(II) entered into, or offered (even if not entered into), on a leveraged or margined basis, or financed by the offeror, the counterparty, or a person acting in concert with the offeror or counterparty on a similar basis.
(ii) Exceptions
This subparagraph shall not apply to—
(I) an agreement, contract, or transaction described in paragraph (1) or subparagraphs 7 (A), (B), or (C), including any agreement, contract, or transaction specifically excluded from subparagraph (A), (B), or (C);
(II) any security;
(III) a contract of sale that—
(aa) results in actual delivery within 28 days or such other longer period as the Commission may determine by rule or regulation based upon the typical commercial practice in cash or spot markets for the commodity involved; or
(bb) creates an enforceable obligation to deliver between a seller and a buyer that have the ability to deliver and accept delivery, respectively, in connection with the line of business of the seller and buyer; or
(IV) an agreement, contract, or transaction that is listed on a national securities exchange registered under section 6(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78f(a)); or
(V) an identified banking product, as defined in section 27(b) of this title.
(iii) Enforcement
Sections 6(a), 6(b), and 6b of this title apply to any agreement, contract, or transaction described in clause (i), as if the agreement, contract, or transaction was a contract of sale of a commodity for future delivery.
(iv) Eligible commercial entity
For purposes of this subparagraph, an agricultural producer, packer, or handler shall be considered to be an eligible commercial entity for any agreement, contract, or transaction for a commodity in connection with the line of business of the agricultural producer, packer, or handler.
(E) Prohibition
(i) Definition of Federal regulatory agency
In this subparagraph, the term "Federal regulatory agency" means—
(I) the Commission;
(II) the Securities and Exchange Commission;
(III) an appropriate Federal banking agency;
(IV) the National Credit Union Association; and
(V) the Farm Credit Administration.
(ii) Prohibition
(I) In general
Except as provided in subclause (II), a person described in subparagraph (B)(i)(II) for which there is a Federal regulatory agency shall not offer to, or enter into with, a person that is not an eligible contract participant, any agreement, contract, or transaction in foreign currency described in subparagraph (B)(i)(I) except pursuant to a rule or regulation of a Federal regulatory agency allowing the agreement, contract, or transaction under such terms and conditions as the Federal regulatory agency shall prescribe.
(II) Effective date
With regard to persons described in subparagraph (B)(i)(II) for which a Federal regulatory agency has issued a proposed rule concerning agreements, contracts, or transactions in foreign currency described in subparagraph (B)(i)(I) prior to July 21, 2010, subclause (I) shall take effect 90 days after July 21, 2010.
(iii) Requirements of rules and regulations
(I) In general
The rules and regulations described in clause (ii) shall prescribe appropriate requirements with respect to—
(aa) disclosure;
(bb) recordkeeping;
(cc) capital and margin;
(dd) reporting;
(ee) business conduct;
(ff) documentation; and
(gg) such other standards or requirements as the Federal regulatory agency shall determine to be necessary.
(II) Treatment
The rules or regulations described in clause (ii) shall treat all agreements, contracts, and transactions in foreign currency described in subparagraph (B)(i)(I), and all agreements, contracts, and transactions in foreign currency that are functionally or economically similar to agreements, contracts, or transactions described in subparagraph (B)(i)(I), similarly.
(d) Swaps
Nothing in this chapter (other than subparagraphs (A), (B), (C), (D), (G), and (H) of subsection (a)(1), subsections (f) and (g), sections 1a, 2(a)(13), 2(c)(2)(A)(ii), 2(e), 2(h), 6(c), 6a, 6b, and 6b–1 of this title, subsections (a), (b), and (g) of section 6c of this title, sections 6d, 6e, 6f, 6g, 6h, 6i, 6j, 6k, 6l, 6m, 6n, 6o, 6p, 6r, 6s, 6t, 7, 7a–1, 7a–2, 7b, and 7b–3 of this title, sections 9 and 13b of this title, sections 13a–1, 13a–2, 12, 12a, and 13 of this title, subsections (e)(2), (f), and (h) of section 16 of this title, subsections (a) and (b) of section 13c of this title, sections 21, 24, 24a, and 25(a)(4) of this title, and any other provision of this chapter that is applicable to registered entities or Commission registrants) governs or applies to a swap.
(e) Limitation on participation
It shall be unlawful for any person, other than an eligible contract participant, to enter into a swap unless the swap is entered into on, or subject to the rules of, a board of trade designated as a contract market under section 7 of this title.
(f) Exclusion for qualifying hybrid instruments
(1) In general
Nothing in this chapter (other than section 16(e)(2)(B) of this title) governs or is applicable to a hybrid instrument that is predominantly a security.
(2) Predominance
A hybrid instrument shall be considered to be predominantly a security if—
(A) the issuer of the hybrid instrument receives payment in full of the purchase price of the hybrid instrument, substantially contemporaneously with delivery of the hybrid instrument;
(B) the purchaser or holder of the hybrid instrument is not required to make any payment to the issuer in addition to the purchase price paid under subparagraph (A), whether as margin, settlement payment, or otherwise, during the life of the hybrid instrument or at maturity;
(C) the issuer of the hybrid instrument is not subject by the terms of the instrument to mark-to-market margining requirements; and
(D) the hybrid instrument is not marketed as a contract of sale of a commodity for future delivery (or option on such a contract) subject to this chapter.
(3) Mark-to-market margining requirements
For the purposes of paragraph (2)(C), mark-to-market margining requirements do not include the obligation of an issuer of a secured debt instrument to increase the amount of collateral held in pledge for the benefit of the purchaser of the secured debt instrument to secure the repayment obligations of the issuer under the secured debt instrument.
(g) Application of commodity futures laws
(1) No provision of this chapter shall be construed as implying or creating any presumption that—
(A) any agreement, contract, or transaction that is excluded from this chapter under subsection (c), (d), (e), (f), or (g) of this section or title IV of the Commodity Futures Modernization Act of 2000 [7 U.S.C. 27 to 27f], or exempted under subsection (h) of this section or section 6(c) of this title; or
(B) any agreement, contract, or transaction, not otherwise subject to this chapter, that is not so excluded or exempted,
is or would otherwise be subject to this chapter.
(2) No provision of, or amendment made by, the Commodity Futures Modernization Act of 2000 shall be construed as conferring jurisdiction on the Commission with respect to any such agreement, contract, or transaction, except as expressly provided in section 7a–1 of this title.
(h) Clearing requirement
(1) In general
(A) Standard for clearing
It shall be unlawful for any person to engage in a swap unless that person submits such swap for clearing to a derivatives clearing organization that is registered under this chapter or a derivatives clearing organization that is exempt from registration under this chapter if the swap is required to be cleared.
(B) Open access
The rules of a derivatives clearing organization described in subparagraph (A) shall—
(i) prescribe that all swaps (but not contracts of sale of a commodity for future delivery or options on such contracts) submitted to the derivatives clearing organization with the same terms and conditions are economically equivalent within the derivatives clearing organization and may be offset with each other within the derivatives clearing organization; and
(ii) provide for non-discriminatory clearing of a swap (but not a contract of sale of a commodity for future delivery or option on such contract) executed bilaterally or on or through the rules of an unaffiliated designated contract market or swap execution facility.
(2) Commission review
(A) Commission-initiated review
(i) The Commission on an ongoing basis shall review each swap, or any group, category, type, or class of swaps to make a determination as to whether the swap or group, category, type, or class of swaps should be required to be cleared.
(ii) The Commission shall provide at least a 30-day public comment period regarding any determination made under clause (i).
(B) Swap submissions
(i) A derivatives clearing organization shall submit to the Commission each swap, or any group, category, type, or class of swaps that it plans to accept for clearing, and provide notice to its members (in a manner to be determined by the Commission) of the submission.
(ii) Any swap or group, category, type, or class of swaps listed for clearing by a derivative clearing organization as of July 21, 2010, shall be considered submitted to the Commission.
(iii) The Commission shall—
(I) make available to the public submissions received under clauses (i) and (ii);
(II) review each submission made under clauses (i) and (ii), and determine whether the swap, or group, category, type, or class of swaps described in the submission is required to be cleared; and
(III) provide at least a 30-day public comment period regarding its determination as to whether the clearing requirement under paragraph (1)(A) shall apply to the submission.
(C) Deadline
The Commission shall make its determination under subparagraph (B)(iii) not later than 90 days after receiving a submission made under subparagraphs (B)(i) and (B)(ii), unless the submitting derivatives clearing organization agrees to an extension for the time limitation established under this subparagraph.
(D) Determination
(i) In reviewing a submission made under subparagraph (B), the Commission shall review whether the submission is consistent with section 7a–1(c)(2) of this title.
(ii) In reviewing a swap, group of swaps, or class of swaps pursuant to subparagraph (A) or a submission made under subparagraph (B), the Commission shall take into account the following factors:
(I) The existence of significant outstanding notional exposures, trading liquidity, and adequate pricing data.
(II) The availability of rule framework, capacity, operational expertise and resources, and credit support infrastructure to clear the contract on terms that are consistent with the material terms and trading conventions on which the contract is then traded.
(III) The effect on the mitigation of systemic risk, taking into account the size of the market for such contract and the resources of the derivatives clearing organization available to clear the contract.
(IV) The effect on competition, including appropriate fees and charges applied to clearing.
(V) The existence of reasonable legal certainty in the event of the insolvency of the relevant derivatives clearing organization or 1 or more of its clearing members with regard to the treatment of customer and swap counterparty positions, funds, and property.
(iii) In making a determination under subparagraph (A) or (B)(iii) that the clearing requirement shall apply, the Commission may require such terms and conditions to the requirement as the Commission determines to be appropriate.
(E) Rules
Not later than 1 year after July 21, 2010, the Commission shall adopt rules for a derivatives clearing organization's submission for review, pursuant to this paragraph, of a swap, or a group, category, type, or class of swaps, that it seeks to accept for clearing. Nothing in this subparagraph limits the Commission from making a determination under subparagraph (B)(iii) for swaps described in subparagraph (B)(ii).
(3) Stay of clearing requirement
(A) In general
After making a determination pursuant to paragraph (2)(B), the Commission, on application of a counterparty to a swap or on its own initiative, may stay the clearing requirement of paragraph (1) until the Commission completes a review of the terms of the swap (or the group, category, type, or class of swaps) and the clearing arrangement.
(B) Deadline
The Commission shall complete a review undertaken pursuant to subparagraph (A) not later than 90 days after issuance of the stay, unless the derivatives clearing organization that clears the swap, or group, category, type, or class of swaps agrees to an extension of the time limitation established under this subparagraph.
(C) Determination
Upon completion of the review undertaken pursuant to subparagraph (A), the Commission may—
(i) determine, unconditionally or subject to such terms and conditions as the Commission determines to be appropriate, that the swap, or group, category, type, or class of swaps must be cleared pursuant to this subsection if it finds that such clearing is consistent with paragraph (2)(D); or
(ii) determine that the clearing requirement of paragraph (1) shall not apply to the swap, or group, category, type, or class of swaps.
(D) Rules
Not later than 1 year after July 21, 2010, the Commission shall adopt rules for reviewing, pursuant to this paragraph, a derivatives clearing organization's clearing of a swap, or a group, category, type, or class of swaps, that it has accepted for clearing.
(4) Prevention of evasion
(A) In general
The Commission shall prescribe rules under this subsection (and issue interpretations of rules prescribed under this subsection) as determined by the Commission to be necessary to prevent evasions of the mandatory clearing requirements under this chapter.
(B) Duty of Commission to investigate and take certain actions
To the extent the Commission finds that a particular swap, group, category, type, or class of swaps would otherwise be subject to mandatory clearing but no derivatives clearing organization has listed the swap, group, category, type, or class of swaps for clearing, the Commission shall—
(i) investigate the relevant facts and circumstances;
(ii) within 30 days issue a public report containing the results of the investigation; and
(iii) take such actions as the Commission determines to be necessary and in the public interest, which may include requiring the retaining of adequate margin or capital by parties to the swap, group, category, type, or class of swaps.
(C) Effect on authority
Nothing in this paragraph—
(i) authorizes the Commission to adopt rules requiring a derivatives clearing organization to list for clearing a swap, group, category, type, or class of swaps if the clearing of the swap, group, category, type, or class of swaps would threaten the financial integrity of the derivatives clearing organization; and
(ii) affects the authority of the Commission to enforce the open access provisions of paragraph (1)(B) with respect to a swap, group, category, type, or class of swaps that is listed for clearing by a derivatives clearing organization.
(5) Reporting transition rules
Rules adopted by the Commission under this section shall provide for the reporting of data, as follows:
(A) Swaps entered into before July 21, 2010, shall be reported to a registered swap data repository or the Commission no later than 180 days after the effective date of this subsection.
(B) Swaps entered into on or after July 21, 2010, shall be reported to a registered swap data repository or the Commission no later than the later of—
(i) 90 days after such effective date; or
(ii) such other time after entering into the swap as the Commission may prescribe by rule or regulation.
(6) Clearing transition rules
(A) Swaps entered into before July 21, 2010, are exempt from the clearing requirements of this subsection if reported pursuant to paragraph (5)(A).
(B) Swaps entered into before application of the clearing requirement pursuant to this subsection are exempt from the clearing requirements of this subsection if reported pursuant to paragraph (5)(B).
(7) Exceptions
(A) In general
The requirements of paragraph (1)(A) shall not apply to a swap if 1 of the counterparties to the swap—
(i) is not a financial entity;
(ii) is using swaps to hedge or mitigate commercial risk; and
(iii) notifies the Commission, in a manner set forth by the Commission, how it generally meets its financial obligations associated with entering into non-cleared swaps.
(B) Option to clear
The application of the clearing exception in subparagraph (A) is solely at the discretion of the counterparty to the swap that meets the conditions of clauses (i) through (iii) of subparagraph (A).
(C) Financial entity definition
(i) In general
For the purposes of this paragraph, the term "financial entity" means—
(I) a swap dealer;
(II) a security-based swap dealer;
(III) a major swap participant;
(IV) a major security-based swap participant;
(V) a commodity pool;
(VI) a private fund as defined in section 80b–2(a) of title 15;
(VII) an employee benefit plan as defined in paragraphs (3) and (32) of section 1002 of title 29;
(VIII) a person predominantly engaged in activities that are in the business of banking, or in activities that are financial in nature, as defined in section 1843(k) of title 12.
(ii) Exclusion
The Commission shall consider whether to exempt small banks, savings associations, farm credit system institutions, and credit unions, including—
(I) depository institutions with total assets of $10,000,000,000 or less;
(II) farm credit system institutions with total assets of $10,000,000,000 or less; or
(III) credit unions with total assets of $10,000,000,000 or less.
(iii) Limitation
Such definition shall not include an entity whose primary business is providing financing, and uses derivatives for the purpose of hedging underlying commercial risks related to interest rate and foreign currency exposures, 90 percent or more of which arise from financing that facilitates the purchase or lease of products, 90 percent or more of which are manufactured by the parent company or another subsidiary of the parent company.
(D) Treatment of affiliates
(i) In general
An affiliate of a person that qualifies for an exception under subparagraph (A) (including affiliate entities predominantly engaged in providing financing for the purchase of the merchandise or manufactured goods of the person) may qualify for the exception only if the affiliate—
(I) enters into the swap to hedge or mitigate the commercial risk of the person or other affiliate of the person that is not a financial entity, and the commercial risk that the affiliate is hedging or mitigating has been transferred to the affiliate;
(II) is directly and wholly-owned by another affiliate qualified for the exception under this subparagraph or an entity that is not a financial entity;
(III) is not indirectly majority-owned by a financial entity;
(IV) is not ultimately owned by a parent company that is a financial entity; and
(V) does not provide any services, financial or otherwise, to any affiliate that is a nonbank financial company supervised by the Board of Governors (as defined under section 5311 of title 12).
(ii) Limitation on qualifying affiliates
The exception in clause (i) shall not apply if the affiliate is—
(I) a swap dealer;
(II) a security-based swap dealer;
(III) a major swap participant;
(IV) a major security-based swap participant;
(V) a commodity pool;
(VI) a bank holding company;
(VII) a private fund, as defined in section 80b–2(a) of title 15;
(VIII) an employee benefit plan or government 8 plan, as defined in paragraphs (3) and (32) of section 1002 of title 29;
(IX) an insured depository institution;
(X) a farm credit system institution;
(XI) a credit union;
(XII) a nonbank financial company supervised by the Board of Governors (as defined under section 5311 of title 12); or
(XIII) an entity engaged in the business of insurance and subject to capital requirements established by an insurance governmental authority of a State, a territory of the United States, the District of Columbia, a country other than the United States, or a political subdivision of a country other than the United States that is engaged in the supervision of insurance companies under insurance law.
(iii) Limitation on affiliates' affiliates
Unless the Commission determines, by order, rule, or regulation, that it is in the public interest, the exception in clause (i) shall not apply with respect to an affiliate if the affiliate is itself affiliated with—
(I) a major security-based swap participant;
(II) a security-based swap dealer;
(III) a major swap participant; or
(IV) a swap dealer.
(iv) Conditions on transactions
With respect to an affiliate that qualifies for the exception in clause (i)—
(I) the affiliate may not enter into any swap other than for the purpose of hedging or mitigating commercial risk; and
(II) neither the affiliate nor any person affiliated with the affiliate that is not a financial entity may enter into a swap with or on behalf of any affiliate that is a financial entity or otherwise assume, net, combine, or consolidate the risk of swaps entered into by any such financial entity, except one that is an affiliate that qualifies for the exception under clause (i).
(v) Transition rule for affiliates
An affiliate, subsidiary, or a wholly owned entity of a person that qualifies for an exception under subparagraph (A) and is predominantly engaged in providing financing for the purchase or lease of merchandise or manufactured goods of the person shall be exempt from the margin requirement described in section 6s(e) of this title and the clearing requirement described in paragraph (1) with regard to swaps entered into to mitigate the risk of the financing activities for not less than a 2-year period beginning on July 21, 2010.
(vi) Risk management program
Any swap entered into by an affiliate that qualifies for the exception in clause (i) shall be subject to a centralized risk management program of the affiliate, which is reasonably designed both to monitor and manage the risks associated with the swap and to identify each of the affiliates on whose behalf a swap was entered into.
(E) Election of counterparty
(i) Swaps required to be cleared
With respect to any swap that is subject to the mandatory clearing requirement under this subsection and entered into by a swap dealer or a major swap participant with a counterparty that is not a swap dealer, major swap participant, security-based swap dealer, or major security-based swap participant, the counterparty shall have the sole right to select the derivatives clearing organization at which the swap will be cleared.
(ii) Swaps not required to be cleared
With respect to any swap that is not subject to the mandatory clearing requirement under this subsection and entered into by a swap dealer or a major swap participant with a counterparty that is not a swap dealer, major swap participant, security-based swap dealer, or major security-based swap participant, the counterparty—
(I) may elect to require clearing of the swap; and
(II) shall have the sole right to select the derivatives clearing organization at which the swap will be cleared.
(F) Abuse of exception
The Commission may prescribe such rules or issue interpretations of the rules as the Commission determines to be necessary to prevent abuse of the exceptions described in this paragraph. The Commission may also request information from those persons claiming the clearing exception as necessary to prevent abuse of the exceptions described in this paragraph.
(8) Trade execution
(A) In general
With respect to transactions involving swaps subject to the clearing requirement of paragraph (1), counterparties shall—
(i) execute the transaction on a board of trade designated as a contract market under section 7 of this title; or
(ii) execute the transaction on a swap execution facility registered under 7b–3 9 of this title or a swap execution facility that is exempt from registration under section 7b–3(f) of this title.
(B) Exception
The requirements of clauses (i) and (ii) of subparagraph (A) shall not apply if no board of trade or swap execution facility makes the swap available to trade or for swap transactions subject to the clearing exception under paragraph (7).
(i) Applicability
The provisions of this chapter relating to swaps that were enacted by the Wall Street Transparency and Accountability Act of 2010 (including any rule prescribed or regulation promulgated under that Act), shall not apply to activities outside the United States unless those activities—
(1) have a direct and significant connection with activities in, or effect on, commerce of the United States; or
(2) contravene such rules or regulations as the Commission may prescribe or promulgate as are necessary or appropriate to prevent the evasion of any provision of this chapter that was enacted by the Wall Street Transparency and Accountability Act of 2010.
(j) Committee approval by Board
Exemptions from the requirements of subsection (h)(1) to clear a swap and subsection (h)(8) to execute a swap through a board of trade or swap execution facility shall be available to a counterparty that is an issuer of securities that are registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l) or that is required to file reports pursuant to section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o[d]) only if an appropriate committee of the issuer's board or governing body has reviewed and approved its decision to enter into swaps that are subject to such exemptions.
(Sept. 21, 1922, ch. 369, §2, 42 Stat. 998; June 15, 1936, ch. 545, §§2, 3, 49 Stat. 1491; Apr. 7, 1938, ch. 108, 52 Stat. 205; Oct. 9, 1940, ch. 786, §1, 54 Stat. 1059; Aug. 28, 1954, ch. 1041, title VII, §710(a), 68 Stat. 913; July 26, 1955, ch. 382, §1, 69 Stat. 375; Pub. L. 90–258, §1, Feb. 19, 1968, 82 Stat. 26; Pub. L. 90–418, July 23, 1968, 82 Stat. 413; Pub. L. 93–463, title I, §101(a), title II, §§201, 202, Oct. 23, 1974, 88 Stat. 1389, 1395; Pub. L. 95–405, §2, Sept. 30, 1978, 92 Stat. 865; Pub. L. 97–444, title I, §101, title II, §§201, 202, Jan. 11, 1983, 96 Stat. 2294, 2297, 2298; Pub. L. 99–641, title I, §110(1), Nov. 10, 1986, 100 Stat. 3561; Pub. L. 102–546, title II, §§209(b)(1), 215, 226, title IV, §404(b), title V, §501, Oct. 28, 1992, 106 Stat. 3606, 3611, 3618, 3628; Pub. L. 106–554, §1(a)(5) [title I, §§102—105(b), 106, 107, 123(a)(2), title II, §251(a), (b), (i), (j)], Dec. 21, 2000, 114 Stat. 2763, 2763A-376 to 2763A-379, 2763A-382, 2763A-405, 2763A-436, 2763A-441, 2763A-445; Pub. L. 107–171, title X, §10702(a), May 13, 2002, 116 Stat. 516; Pub. L. 110–234, title XIII, §§13101(a), 13201(b), 13203(c)–(f), May 22, 2008, 122 Stat. 1427, 1436, 1439; Pub. L. 110–246, §4(a), title XIII, §§13101(a), 13201(b), 13203(c)–(f), June 18, 2008, 122 Stat. 1664, 2189, 2198, 2201; Pub. L. 111–203, title VII, §§717(a), 721(e)(1), 722(a), (c)–(e), 723(a), (b), 727, 734(b)(1), 741(b)(8), (9), 742(a), (c), 751, July 21, 2010, 124 Stat. 1651, 1671-1673, 1675, 1681, 1696, 1718, 1731-1733, 1749; Pub. L. 114–113, div. O, title VII, §705(a), Dec. 18, 2015, 129 Stat. 3025; Pub. L. 117–286, §4(a)(19), Dec. 27, 2022, 136 Stat. 4307.)
Editorial Notes
References in Text
The Wall Street Transparency and Accountability Act of 2010, referred to in subsecs. (a)(1)(A), (G)(i), (H) and (i), is title VII of Pub. L. 111–203, July 21, 2010, 124 Stat. 1641, which enacted chapter 109 (§8301 et seq.) of Title 15, Commerce and Trade, and enacted and amended numerous other sections and notes in the Code. For complete classification of this Act to the Code, see Short Title note set out under section 8301 of Title 15 and Tables.
Section 77b(1) of title 15, referred to in subsec. (a)(1)(C)(i)(I), was redesignated section 77b(a)(1) of title 15 by Pub. L. 104–290, title I, §106(a)(1), Oct. 11, 1996, 110 Stat. 3424.
The Securities Exchange Act of 1934, referred to in subsec. (a)(1)(D)(i)(VI), (iii)(II), is act June 6, 1934, ch. 404, 48 Stat. 881, as amended, which is classified principally to chapter 2B (§78a et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 78a of Title 15 and Tables.
The date of the enactment of this clause and such date of enactment, referred to in subsec. (c)(2)(B)(ii), are the date of enactment of Pub. L. 110–246, which was approved June 18, 2008.
Item (ee) of subsec. (c)(2)(B)(i)(II), referred to in subsec. (c)(2)(B)(iii), (iv)(I), (II)(aa), (C)(i)(I)(aa), (ii)(II)(aa), (iii)(I), (II)(aa), was redesignated item (dd) by Pub. L. 111–203, title VII, §742(c)(1)(C), July 21, 2010, 124 Stat. 1733.
Item (gg) of subsec. (c)(2)(B)(i)(II), referred to in subsec. (c)(2)(B)(iii), (iv)(I), (III), (v), was redesignated item (ff) by Pub. L. 111–203, title VII, §742(c)(1)(C), July 21, 2010, 124 Stat. 1733.
The Commodity Futures Modernization Act of 2000, referred to in subsec. (g)(1)(A), (2), is H.R. 5660, as enacted by Pub. L. 106–554, §1(a)(5), Dec. 21, 2000, 114 Stat. 2763, 2763A-365. Title IV of the Act, known as the Legal Certainty for Bank Products Act of 2000, is classified to sections 27 to 27f of this title. For complete classification of this Act to the Code, see Short Title of 2000 Amendment note set out under section 1 of this title, and Tables.
For the effective date of this subsection and such effective date, referred to in subsec. (h)(5)(A), (B)(i), see Effective Date of 2010 Amendment note below.
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Subsec. (a)(1)(B) of this section was formerly classified to section 4 of this title. Subsec. (a)(1)(C) of this section was formerly classified to section 2a of this title. Subsec. (a)(2) to (11) of this section was formerly classified to section 4a of this title. Subsec. (b) of this section was formerly classified to section 3 of this title.
Amendments
2022—Subsec. (a)(15)(E). Pub. L. 117–286 substituted "Chapter 10 of title 5" for "FACA" in heading and "chapter 10 of title 5." for "the Federal Advisory Committee Act (5 U.S.C. App.)." in text.
2015—Subsec. (h)(7)(D). Pub. L. 114–113 added cls. (i) to (iv) and (vi), redesignated former cl. (iii) as (v), and struck out former cls. (i) and (ii) which related to application of exception to affiliates and prohibition relating to certain affiliates, respectively.
2010—Subsec. (a)(1)(A). Pub. L. 111–203, §734(b)(1)(A), which directed amendment of subpar. (A) by striking "or 7a", could not be executed because of prior amendment by Pub. L. 111–203, §722(a)(1). See below.
Pub. L. 111–203, §722(a)(1), inserted "the Wall Street Transparency and Accountability Act of 2010 (including an amendment made by that Act) and" after "otherwise provided in" and substituted "(C), (D), and (I)" for "(C) and (D)", "(c) and (f)" for "(c) through (i) of this section", "swaps or contracts of sale" for "contracts of sale", and "pursuant to section 7 of this title or a swap execution facility pursuant to section 7b–3 of this title" for "or derivatives transaction execution facility registered pursuant to section 7 or 7a of this title".
Subsec. (a)(1)(C)(i). Pub. L. 111–203, §717(a), designated existing provisions as subcl. (I), substituted "Except as provided in subclause (II), this" for "This", and added subcl. (II).
Subsec. (a)(1)(G), (H). Pub. L. 111–203, §722(a)(2), added subpars. (G) and (H).
Subsec. (a)(1)(I). Pub. L. 111–203, §722(e), added subpar. (I).
Subsec. (a)(13), (14). Pub. L. 111–203, §727, added pars. (13) and (14).
Subsec. (a)(15). Pub. L. 111–203, §751, added par. (15).
Subsec. (c)(1). Pub. L. 111–203, §742(a)(1), substituted ", 7a–1, or 16(e)(2)(B) of this title)" for "7a (to the extent provided in section 7a(g) of this title), 7a–1, 7a–3, or 16(e)(2)(B) of this title)".
Subsec. (c)(2)(A)(ii), (iii). Pub. L. 111–203, §722(c), added cl. (ii) and redesignated former cl. (ii) as (iii).
Subsec. (c)(2)(B). Pub. L. 111–203, §741(b)(8)(A), struck out "(dd)," before "(ee)," wherever appearing.
Subsec. (c)(2)(B)(i)(II)(aa). Pub. L. 111–203, §742(c)(1)(A), inserted "United States" before "financial institution".
Subsec. (c)(2)(B)(i)(II)(cc). Pub. L. 111–203, §721(e)(1)(A), substituted "section 1a" for "section 1a(20)" in two places.
Subsec. (c)(2)(B)(i)(II)(dd). Pub. L. 111–203, §742(c)(1)(B)–(D), redesignated item (ee) as (dd), substituted "; or" for semicolon at end, and struck out former item (dd) which read as follows: "an insurance company described in section 1a(18)(A)(ii) of this title, or a regulated subsidiary or affiliate of such an insurance company;".
Pub. L. 111–203, §721(e)(1)(B), substituted "section 1a(18)(A)(ii)" for "section 1a(12)(A)(ii)".
Subsec. (c)(2)(B)(i)(II)(ee) to (gg). Pub. L. 111–203, §742(c)(1)(B), (C), redesignated items (ee) and (gg) as (dd) and (ff), respectively, and struck out former item (ff) which read as follows: "an investment bank holding company (as defined in section 17(i) of the Securities Exchange Act of 1934 (15 U.S.C. 78q(i))); or".
Subsec. (c)(2)(B)(iii). Pub. L. 111–203, §741(b)(8)(B), inserted ", and accounts or pooled investment vehicles described in clause (vi)," before "shall be subject to".
Subsec. (c)(2)(B)(vi). Pub. L. 111–203, §741(b)(8)(C), added cl. (vi).
Subsec. (c)(2)(C). Pub. L. 111–203, §741(b)(9)(A), struck out "(dd)," before "(ee)," wherever appearing.
Subsec. (c)(2)(C)(ii)(I). Pub. L. 111–203, §741(b)(9)(B), inserted ", and accounts or pooled investment vehicles described in clause (vii)," before "shall be subject to".
Subsec. (c)(2)(C)(vii). Pub. L. 111–203, §741(b)(9)(C), added cl. (vii).
Subsec. (c)(2)(D). Pub. L. 111–203, §742(a)(2), added subpar. (D).
Subsec. (c)(2)(E). Pub. L. 111–203, §742(c)(2), added subpar. (E).
Subsecs. (d), (e). Pub. L. 111–203, §723(a)(1)(A), (2), added subsecs. (d) and (e) and struck out former subsecs. (d) and (e) which related to excluded derivative transactions and excluded electronic trading facilities, respectively.
Subsec. (g). Pub. L. 111–203, §723(a)(1), redesignated subsec. (i) as (g) and struck out former subsec. (g) which related to excluded swap transactions.
Subsec. (g)(2). Pub. L. 111–203, §734(b)(1)(B), substituted "section 7a–1 of this title" for "section 7a of this title (to the extent provided in section 7a(g) of this title), 7a–1 of this title, or 7a–3 of this title".
Subsec. (h). Pub. L. 111–203, §723(a)(1)(A), (3), added subsec. (h) and struck out former subsec. (h) which related to legal certainty for certain transactions in exempt commodities.
Subsec. (i). Pub. L. 111–203, §723(a)(1)(B), which directed redesignation of subsec. (i) as (g), was executed by redesignating the subsec. (i) added by Pub. L. 106–554, §1(a)(5) [title I, §107], relating to application of commodity futures laws, as (g), to reflect the probable intent of Congress. Another subsec. (i), relating to applicability of certain swaps provisions, was added by Pub. L. 111–203, §722(d). See below.
Pub. L. 111–203, §722(d), added subsec. (i) relating to applicability of certain swaps provisions.
Subsec. (j). Pub. L. 111–203, §723(b), added subsec. (j).
2008—Subsec. (a)(1)(A). Pub. L. 110–246, §13203(c), inserted "(including significant price discovery contracts)" after "future delivery".
Subsec. (c)(2)(B), (C). Pub. L. 110–246, §13101(a), added subpars. (B) and (C) and struck out former subpars. (B) and (C) which related to: in subpar. (B), applicability of chapter to an agreement, contract, or transaction in foreign currency that was a contract of sale of a commodity for future delivery or an option on such a contract and was offered to, or entered into with, a person who was not an eligible contract participant, unless the counterparty, or the person offering to be the counterparty, of the person was a financial institution, a registered broker or dealer or a registered futures commission merchant, an associated person of a registered broker or dealer or an affiliated person of a registered futures commission merchant, an insurance company or a regulated subsidiary or affiliate of such an insurance company, a financial holding company, or an investment bank holding company; and, in subpar. (C), applicability of sections 6b, 6c(b), 9, 12(a), 13a–1, 13a–2, 13b, and 15 of this title to agreements, contracts, or transactions described in former subpar. (B).
Subsec. (h)(3). Pub. L. 110–246, §13203(d), substituted "paragraphs (4) and (7)" for "paragraph (4)" in introductory provisions.
Subsec. (h)(4)(B). Pub. L. 110–246, §13203(e)(1), inserted "and, for a significant price discovery contract, requiring large trader reporting," after "proscribing fraud".
Subsec. (h)(4)(D), (E). Pub. L. 110–246, §13203(e)(2), (3), added subpars. (D) and (E) and struck out former subpar. (D) which read as follows: "such rules and regulations as the Commission may prescribe if necessary to ensure timely dissemination by the electronic trading facility of price, trading volume, and other trading data to the extent appropriate, if the Commission determines that the electronic trading facility performs a significant price discovery function for transactions in the cash market for the commodity underlying any agreement, contract, or transaction executed or traded on the electronic trading facility."
Subsec. (h)(5)(B)(iii)(I). Pub. L. 110–246, §13203(f), inserted "or to make the determination described in subparagraph (B) of paragraph (7)" after "paragraph (4)".
Subsec. (h)(7). Pub. L. 110–246, §13201(b), added par. (7).
2002—Subsec. (a)(7) to (12). Pub. L. 107–171 added par. (7) and redesignated former pars. (7) to (11) as (8) to (12), respectively.
2000—Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(A)], inserted section catchline.
Subsec. (a). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(A)], inserted headings for subsec. (a) and par. (1).
Subsec. (a)(1)(A). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(B)(i)(II)], substituted "contract market designated or derivatives transaction execution facility registered pursuant to section 7 or 7a of this title" for "contract market designated pursuant to section 7 of this title".
Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(B)(i)(I)], which directed substitution of "subparagraphs (C) and (D) of this paragraph and subsections (c) through (i) of this section" for "subparagraph (B) of this subparagraph", was executed by making the substitution for "subparagraph (B) of this paragraph" to reflect the probable intent of Congress.
Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(A)], inserted heading and struck out "(i)" before "The Commission shall have".
Subsec. (a)(1)(A)(ii). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(B)(i)(III)], struck out cl. (ii) which read as follows: "Nothing in this chapter shall be deemed to govern or in any way be applicable to transactions in foreign currency, security warrants, security rights, resales of installment loan contracts, repurchase options, government securities, or mortgages and mortgage purchase commitments, unless such transactions involve the sale thereof for future delivery conducted on a board of trade."
Subsec. (a)(1)(B). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(B)(i)(IV)], redesignated subsec. (a)(1)(A)(iii) as subsec. (a)(1)(B) and inserted heading. Former subsec. (a)(1)(B) redesignated (a)(1)(C).
Subsec. (a)(1)(C). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(B)(ii)(I)], redesignated subpar. (B) as (C).
Subsec. (a)(1)(C)(i). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(B)(ii)(III)], adjusted margins.
Subsec. (a)(1)(C)(ii). Pub. L. 106–554, §1(a)(5) [title II, §251(a)(1)(A)(iii)], substituted "or the derivatives transaction execution facility, and the applicable contract, meet" for "making such application demonstrates and the Commission expressly finds that the specific contract (or option on such contract) with respect to which the application has been made meets" in introductory provisions.
Pub. L. 106–554, §1(a)(5) [title II, §251(a)(1)(A)(ii)], which directed insertion of ", and no derivatives transaction execution facility shall trade or execute such contracts of sale (or options on such contracts) for future delivery," after "contracts) for future delivery", was executed by making the insertion in the proviso in introductory provisions to reflect the probable intent of Congress.
Pub. L. 106–554, §1(a)(5) [title II, §251(a)(1)(A)(i)], inserted "or register a derivatives transaction execution facility that trades or executes," after "contract market in," in introductory provisions.
Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(B)(ii)(III)], adjusted margins.
Subsec. (a)(1)(C)(ii)(III). Pub. L. 106–554, §1(a)(5) [title II, §251(a)(1)(A)(iv)], added subcl. (III) and struck out former subcl. (III) which read as follows: "Such group or index of securities shall be predominately composed of the securities of unaffiliated issuers and shall be a widely published measure of, and shall reflect, the market for all publicly traded equity or debt securities or a substantial segment thereof, or shall be comparable to such measure."
Subsec. (a)(1)(C)(iii). Pub. L. 106–554, §1(a)(5) [title II, §251(a)(1)(B), (C)], added cl. (iii) and struck out former cl. (iii) which read as follows: "Upon application by a board of trade for designation as a contract market with respect to any contract of sale (or option on such contract) for future delivery involving a group or index of securities, the Commission shall provide an opportunity for public comment on whether such contracts (or options on such contracts) meet the minimum requirements set forth in clause (ii) of this subparagraph."
Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(B)(ii)(III)], adjusted margins.
Subsec. (a)(1)(C)(iv). Pub. L. 106–554, §1(a)(5) [title II, §251(a)(1)(C), (D)], redesignated cl. (v) as (iv) and struck out former cl. (iv) which related to consultation by the Commission with, and the authority of, the Securities and Exchange Commission with respect to approval of any application by a Board of Trade for designation as a contract market with respect to any contract of sale (or option of such contract) for future delivery of a group or index of securities.
Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(B)(ii)(III)], adjusted margins.
Subsec. (a)(1)(C)(v). Pub. L. 106–554, §1(a)(5) [title II, §251(b)(2)], redesignated cl. (vi) as (v), added subcls. (I) to (V), and struck out former subcls. (I) to (IV) which required any contract market in a stock index futures contract (or option thereon) to file with the Board of Governors of the Federal Reserve System any rule establishing or changing the levels of margin for the stock index futures contract (or option thereon), authorized the Board to request any contract market to set the margins at certain levels, authorized the Board to delegate its authority under this clause to the Commission, and preserved the authority of the Commission to raise temporary emergency margin levels.
Pub. L. 106–554, §1(a)(5) [title II, §251(a)(1)(D)], redesignated cl. (v) as (iv).
Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(B)(ii)(II), (III)], struck out "section 77c of title 15" after "exempted security under", inserted "or subparagraph (D)" after "subparagraph", and adjusted margins.
Subsec. (a)(1)(C)(vi). Pub. L. 106–554, §1(a)(5) [title II, §251(b)(2)], redesignated cl. (vi) as (v).
Pub. L. 106–554, §1(a)(5) [title II, §251(b)(1)], redesignated subcl. (V) as (VI).
Subsec. (a)(1)(D). Pub. L. 106–554, §1(a)(5) [title II, §251(a)(2)], added subpar. (D).
Subsec. (a)(1)(E). Pub. L. 106–554, §1(a)(5) [title II, §251(i)], added subpar. (E).
Subsec. (a)(1)(F). Pub. L. 106–554, §1(a)(5) [title II, §251(j)], added subpar. (F).
Subsec. (a)(2) to (6). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(E)], adjusted margins.
Subsec. (a)(7). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(C), (E)], substituted "registered entity" for "contract market" and adjusted margins.
Subsec. (a)(8). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(E)], adjusted margins.
Subsec. (a)(8)(B)(ii). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(D)(iii)], in last sentence, substituted "designating, registering, or refusing, suspending, or revoking the designation or registration of, a board of trade as a contract market or derivatives transaction execution facility involving transactions for future delivery referred to in this clause or in considering any possible action under this chapter (including without limitation emergency action under section 12a(9) of this title)" for "designating, or refusing, suspending, or revoking the designation of, a board of trade as a contract market involving transactions for future delivery referred to in this clause or in considering possible emergency action under section 12a(9) of this title" and "designation, registration, suspension, revocation, or action" for "designation, suspension, revocation, or emergency action".
Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(D)(ii)], substituted "designate or register a board of trade as a contract market or derivatives transaction execution facility" for "designate a board of trade as a contract market" in second sentence.
Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(D)(i)], substituted "designation or registration as a contract market or derivatives transaction execution facility" for "designation as a contract market" in first sentence.
Subsec. (a)(9). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(2)(E)], adjusted margins.
Subsec. (c). Pub. L. 106–554, §1(a)(5) [title I, §102], added subsec. (c).
Subsec. (d). Pub. L. 106–554, §1(a)(5) [title I, §103], added subsec. (d).
Subsec. (e). Pub. L. 106–554, §1(a)(5) [title I, §104], added subsec. (e).
Subsec. (f). Pub. L. 106–554, §1(a)(5) [title I, §105(a)], added subsec. (f).
Subsec. (g). Pub. L. 106–554, §1(a)(5) [title I, §105(b)], added subsec. (g).
Subsec. (h). Pub. L. 106–554, §1(a)(5) [title I, §106], added subsec. (h).
Subsec. (i). Pub. L. 106–554, §1(a)(5) [title I, §107], added subsec. (i).
1992—Subsec. (a)(1)(A). Pub. L. 102–546, §404(b)(2)–(7), redesignated cls. (i) and (ii) of former third sentence as subcls. (I) and (II), respectively, designated former fifth sentence as cl. (ii), designated former eighth sentence as cl. (iii), and struck out former sixth, seventh, and ninth through last sentences, which included definitions of "future delivery", "board of trade", "interstate commerce", "cooperative association of producers", "member of a contract market", "futures commission merchant", "introducing broker", "floor broker", "the Commission", "commodity trading advisor", and "commodity pool operator". See section 1a of this title.
Pub. L. 102–546, §404(b)(1), which directed the substitution of "(i) The Commission" for the words "For the purposes" and all that followed through "; Provided, That the Commission", was executed by making the substitution for the first and second sentences and the third sentence through the words ": Provided, That the Commission", to reflect the probable intent of Congress. Prior to amendment, the first, second, and third sentences included definitions of "contract of sale", "person", and "commodity". See section 1a of this title.
Subsec. (a)(1)(B)(iv)(I). Pub. L. 102–546, §209(b)(1)(A), made technical amendment to reference to section 9 of this title appearing in penultimate sentence to reflect change in reference to corresponding section of original act.
Subsec. (a)(1)(B)(iv)(II). Pub. L. 102–546, §209(b)(1)(B), substituted "section 8(b)" for "section 8".
Subsec. (a)(1)(B)(vi). Pub. L. 102–546, §501, added cl. (vi).
Subsec. (a)(2)(A). Pub. L. 102–546, §215, substituted second and third sentences for "The Commission shall be composed of five Commissioners, who shall be appointed by the President, by and with the advice and consent of the Senate. In nominating persons for appointment, the President shall seek to establish and maintain a balanced Commission, including, but not limited to, persons of demonstrated knowledge in futures trading or its regulation and persons of demonstrated knowledge in the production, merchandising, processing or distribution of one or more of the commodities or other goods and articles, services, rights and interests covered by this chapter."
Subsec. (a)(9)(C). Pub. L. 102–546, §226, added subpar. (C).
1986—Subsec. (a)(1)(B)(iv)(I). Pub. L. 99–641 substituted "Securities and Exchange Commission" for "Securities Exchange Commission" before "otherwise agree".
1983—Subsec. (a)(1). Pub. L. 97–444, §101, designated existing provisions as subpar. (A), inserted in third sentence, first proviso, ", except to the extent otherwise provided in subparagraph (B) of this paragraph," after "exclusive jurisdiction", and added subpar. (B).
Subsec. (a)(1)(A). Pub. L. 97–444, §201, inserted definition of "introducing broker" and, in revising definition of "commodity training advisor", included any person advising others through electronic media; substituted provision respecting advising others "as to the value of or the advisability of trading in any contract of sale of a commodity for future delivery made or to be made on or subject to the rules of a contract market, any commodity option authorized under section 6c of this title, or any leverage transaction authorized under section 23 of this title, or who, for compensation or profit, and as part of a regular business, issues or promulgates analyses or reports concerning any of the foregoing" for provision respecting advising others "as to the value of commodities or as to the advisability of trading in any commodity for future delivery on or subject to the rules of any market, or who for compensation or profit, and as part of a regular business, issues or promulgates analyses or reports concerning commodities"; excluded in item (i) any person acting as an employee of any bank or trust company; substituted in cl. (ii) "news reporter, news columnist, or news editor of the print or electronic media" for "newspaper reporter, newspaper columnist, newspaper editor"; substituted in cl. (iv) "the publisher or producer of any print or electronic data of general and regular dissemination, including its employees" for "the publisher of any bona fide newspaper magazine, or business or financial publication of general and regular circulation including their employees"; inserted item (v); redesignated as items (vi) and (vii) former items (v) and (vi); and authorized Commission to effectuate purposes of definition by rule or regulation by including within definition any person advising as to the value of commodities or issuing reports or analyses concerning commodities.
Subsec. (a)(7). Pub. L. 97–444, §202, struck out "(A)" after "(7)" and struck out subpar. (B) which prohibited any representative activities before the Commission for a one year period upon termination of employment occurring on a day more than four months after Sept. 30, 1978, of any Commissioner or employee of the Commission having a GS–16 or higher classified position excepted from the competitive service because of its confidential or policymaking character.
1978—Subsec. (a)(1). Pub. L. 95–405, §2(1), substituted "section 23 of this title" for "section 15a of this title".
Subsec. (a)(2). Pub. L. 95–405, §2(2)–(5), designated existing provisions as subpar. (A) and substituted "five Commissioners" for "a chairman and four other Commissioners", "(i)" for "(A)", and "(ii)" for "(B)", and added subpar. (B).
Subsec. (a)(5). Pub. L. 95–405, §2(6), struck out ", by and with the advice and consent of the Senate," after "by the Commission".
Subsec. (a)(6)(A). Pub. L. 95–405, §2(7), inserted "according to budget categories, plans, programs, and priorities established and approved by the Commission," after "expenditure of funds,".
Subsec. (a)(6)(B). Pub. L. 95–405, §2(8), substituted ", plans, priorities, and budgets approved by the Commission" for "of the Commission".
Subsec. (a)(7). Pub. L. 95–405, §2(9), (10), designated existing provisions as subpar. (A) and added subpar. (B).
Subsec. (a)(8). Pub. L. 95–405, §2(11)–(13), designated existing provisions as subpar. (A), substituted "maintain" for "establish a separate office within the Department of Agriculture to be staffed with employees of the Commission for the purpose of maintaining", and added subpar. (B).
Subsec. (a)(9)(A), (B). Pub. L. 95–405, §2(14), (15), substituted "Senate Committee on Agriculture, Nutrition, and Forestry" for "Senate Committee on Agriculture and Forestry".
1974—Subsec. (a). Pub. L. 93–463, §101(a), designated existing provisions as par. (1), substituted "Commodity Futures Trading Commission established under paragraph (2) of this subsection" for "Commodity Exchange Commission, consisting of the Secretary of Agriculture, the Secretary of Commerce, and the Attorney General, or an official or employee of each of the executive departments concerned, designated by the Secretary of Agriculture, the Secretary of Commerce, and the Attorney General, respectively; and the Secretary of Agriculture or his designee shall serve as Chairman", and added pars. (2) to (11).
Subsec. (a)(1). Pub. L. 93–463, §§201, 202, struck out "onions," after "eggs," in definition of "commodity" and inserted provisions to that definition to include as commodities all other goods and articles, except onions as provided in section 13–1 of this title, and all services, rights, and interests in which contracts for the future delivery are presently or in the future dealt in, and inserted definitions for "commodity trading advisor" and "commodity pool operator".
1968—Subsec. (a). Pub. L. 90–418 extended definition of "commodity" in third sentence to include frozen concentrated orange juice.
Pub. L. 90–258, §1(c), provided in last sentence for representation on the Commission of Secretary of Agriculture, Secretary of Commerce, and Attorney General by an official or employee designated from executive department concerned and for service of Secretary of Agriculture or his designee as Chairman.
Pub. L. 90–258, §1(b), substituted in definition of "floor broker" in penultimate sentence "purchase or sell for any other person" for "engage in executing for others any order for the purchase or sale of" and struck out provision for receipt or acceptance of any commission or other compensation for services as a floor broker.
Pub. L. 90–258, §1(a), extended definition of "commodity" in third sentence to include livestock and livestock products.
1955—Subsec. (a). Act July 26, 1955, extended "commodity" to onions.
1954—Subsec. (a). Act Aug. 28, 1954, extended "commodity" to wool.
1940—Subsec. (a). Act Oct. 9, 1940, extended "commodity" to fats and oils (including lard, tallow, cottonseed oil, peanut oil, soybean oil, and all other fats and oils), cottonseed meal, cottonseed, peanuts, soybeans and soybean meal.
1938—Subsec. (a). Act Apr. 7, 1938, extended "commodity" to wool tops.
1936—Subsec. (a). Act June 15, 1936, substituted "commodity", "any commodity", or "commodities", as the case may require, for "grain" wherever appearing, and "any cash commodity" for "cash grain", substituted sentence defining "commodity" for sentence defining "grain", and inserted definitions of "cooperative association of producers,", "member of a contract market", "futures commission merchant", "floor broker", and "the commission."
Subsec. (b). Act June 15, 1936, §2, substituted "commodity" and "commodities", as the case may require, for "grain" wherever appearing.
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, except as otherwise provided, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Pub. L. 110–234, title XIII, §13101(b), May 22, 2008, 122 Stat. 1432, and Pub. L. 110–246, §4(a), title XIII, §13101(b), June 18, 2008, 122 Stat. 1664, 2194, provided that: "The following provisions of the Commodity Exchange Act [7 U.S.C. 1 et seq.], as amended by subsection (a) of this section [amending this section], shall be effective 120 days after the date of the enactment of this Act [June 18, 2008] or at such other time as the Commodity Futures Trading Commission shall determine:
"(1) Subparagraphs (B)(i)(II)(gg), (B)(iv), and (C)(iii) of section 2(c)(2) [7 U.S.C. 2(c)(2)].
"(2) The provisions of section 2(c)(2)(B)(i)(II)(cc) [7 U.S.C. 2(c)(2)(B)(i)(II)(cc)] that set forth adjusted net capital requirements, and the provisions of such section that require a futures commission merchant to be primarily or substantially engaged in certain business activities."
[Pub. L. 110–234 and Pub. L. 110–246 enacted identical provisions. Pub. L. 110–234 was repealed by section 4(a) of Pub. L. 110–246, set out as a note under section 8701 of this title.]
Pub. L. 110–234, title XIII, §13204, May 22, 2008, 122 Stat. 1441, and Pub. L. 110–246, §4(a), title XIII, §13204, June 18, 2008, 122 Stat. 1664, 2203, provided that:
"(a)
"(b)
"(1) The Commodity Futures Trading Commission shall—
"(A) not later than 180 days after the date of the enactment of this Act [June 18, 2008], issue a proposed rule regarding the implementation of section 2(h)(7) of the Commodity Exchange Act [7 U.S.C. 2(h)(7)]; and
"(B) not later than 270 days after the date of enactment of this Act [June 18, 2008], issue a final rule regarding the implementation.
"(2) In its rulemaking pursuant to paragraph (1) of this subsection, the Commission shall include the standards, terms, and conditions under which an electronic trading facility will have the responsibility to notify the Commission that an agreement, contract, or transaction conducted in reliance on the exemption provided in section 2(h)(3) of the Commodity Exchange Act [7 U.S.C. 2(h)(3)] may perform a price discovery function.
"(c)
[Pub. L. 110–234 and Pub. L. 110–246 enacted identical provisions. Pub. L. 110–234 was repealed by section 4(a) of Pub. L. 110–246, set out as a note under section 8701 of this title.]
Effective Date of 1983 Amendment
Pub. L. 97–444, title II, §239, Jan. 11, 1983, 96 Stat. 2327, provided that: "This Act [see Short Title of 1983 Amendment note set out under section 1 of this title] shall be effective upon the date of enactment of this Act [Jan. 11, 1983], except that sections 207, 212, and 231 of this Act [amending sections 6d, 6k, and 18 of this title] shall be effective one hundred and twenty days after the date of enactment of this Act, or such earlier date as the Commodity Futures Trading Commission shall prescribe by regulation."
Effective Date of 1978 Amendment
Pub. L. 95–405, §28, Sept. 30, 1978, 92 Stat. 878, provided that: "Except as otherwise provided in this Act, the provisions of this Act [see Short Title of 1978 Amendment note set out under section 1 of this title] shall become effective October 1, 1978."
Effective Date of 1974 Amendment
Pub. L. 93–463, title IV, §418, Oct. 23, 1974, 88 Stat. 1415, provided that:
"(a) Except as otherwise provided specifically in this Act [see Short Title of 1974 Amendment note set out under section 1 of this title], the effective date of this Act shall be the 180th day after enactment [Oct. 23, 1974]. The Commission referred to in section 101 [Commodity Futures Trading Commission] is hereby established effective immediately on enactment of this Act. Sections 102 and 410 [amending sections 5108, 5314, 5315, and 5316 of Title 5, Government Organization and Employees] shall be effective immediately on enactment of this Act. Activities necessary to implement the changes effected by this Act may be carried out after the date of enactment and before as well as after the 180th day thereafter. Activities to be carried out after the date of enactment and before the 180th day thereafter may include, but are not limited to the following: Designation of boards of trade as contract markets, registration of futures commission merchants, floor brokers, and other persons required to be registered under the Act [this chapter], approval or modification of bylaws, rules, regulations, and resolutions of contract markets, and issuance of regulations, effective on or after the 180th day after enactment; appointment and compensation of the members of the Commission; hiring and compensation of staff; and conducting of investigations and hearings. Nothing in this Act shall limit the authority of the Secretary of Agriculture or the Commodity Exchange Commission under the Commodity Exchange Act [7 U.S.C. 1 et seq.], as amended, prior to the 180th day after enactment of this Act.
"(b) Funds appropriated for the administration of the Commodity Exchange Act, as amended [7 U.S.C. 1 et seq.], may be used to implement this Act immediately after the date of enactment of this Act [Oct. 23, 1974]."
Effective Date of 1968 Amendment
Pub. L. 90–258, §28, Feb. 19, 1968, 82 Stat. 34, provided that: "This Act [enacting sections 12b, 13b, 13c, and 17b of this title and amending this section and sections 6a, 6b, 6d, 6f, 6g, 6i, 7, 7a, 7b, 8, 9, 12, 12–1, 12a, 13, and 13a of this title] shall become effective one hundred and twenty days after enactment [Feb. 19, 1968]."
Effective Date of 1955 Amendment
Act July 26, 1955, ch. 382, §2, 69 Stat. 375, provided that: "This Act [amending this section] shall take effect sixty days after the date of its enactment [July 26, 1955]."
Effective Date of 1954 Amendment
Act Aug. 28, 1954, ch. 1041, title VII, §710(b), 68 Stat. 913, which provided that the amendment of this section by act Aug. 28, 1954, was effective 60 days after Aug. 28, 1954, was repealed by Pub. L. 103–130, §3(a), Nov. 1, 1993, 107 Stat. 1369, eff. Dec. 31, 1995.
Effective Date of 1940 Amendment
Act Oct. 9, 1940, ch. 786, §2, 54 Stat. 1059, provided that: "This Act [amending this section] shall take effect sixty days after the date of its enactment [Oct. 9, 1940]."
Effective Date of 1936 Amendment
Amendment by act June 15, 1936, effective 90 days after June 15, 1936, see section 13 of that act, set out as a note under section 1 of this title.
Separability of 1974 Amendment
Pub. L. 93–463, title IV, §413, Oct. 23, 1974, 88 Stat. 1414, provided that: "If any provision of this Act [see Short Title of 1974 Amendment note set out under section 1 of this title] or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the Act and the application of such provisions to other persons or circumstances shall not be affected thereby."
Grandfather Provisions
Pub. L. 111–203, title VII, §723(c), July 21, 2010, 124 Stat. 1682, provided that:
"(1)
"(2)
"(A) shall consider any petition submitted under subparagraph (A) in a prompt manner; and
"(B) may allow a person to continue operating subject to section 2(h) of the Commodity Exchange Act (7 U.S.C. 2(h)) (as in effect on the day before the date of enactment of this Act) for not longer than a 1-year period.
"(3)
"(A)
"(B)
"(4)
[For definition of "swap" as used in section 723(c) of Pub. L. 111–203, set out above, see section 5301 of Title 12, Banks and Banking.]
Portfolio Margining and Security Index Issues
Pub. L. 110–234, title XIII, §13106, May 22, 2008, 122 Stat. 1435, and Pub. L. 110–246, §4(a), title XIII, §13106, June 18, 2008, 122 Stat. 1664, 2197, provided that:
"(a) The Secretary of the Treasury, the Chairman of the Board of Governors of the Federal Reserve System, the Chairman of the Securities and Exchange Commission, and the Chairman of the Commodity Futures Trading Commission shall work to ensure that the Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC), or both, as appropriate, have taken the actions required under subsection (b).
"(b) The SEC, the CFTC, or both, as appropriate, shall take action under their existing authorities to permit—
"(1) by September 30, 2009, risk-based portfolio margining for security options and security futures products (as defined in section 1a(32) [now 1a(45)] of the Commodity Exchange Act [7 U.S.C. 1a(32), now 1a(45)]); and
"(2) by June 30, 2009, the trading of futures on certain security indexes by resolving issues related to foreign security indexes."
[Pub. L. 110–234 and Pub. L. 110–246 enacted identical provisions. Pub. L. 110–234 was repealed by section 4(a) of Pub. L. 110–246, set out as a note under section 8701 of this title.]
Study Regarding Retail Swaps
Pub. L. 106–554, §1(a)(5) [title I, §105(c)], Dec. 21, 2000, 114 Stat. 2763, 2763A-379, required the Board of Governors of the Federal Reserve System, the Secretary of the Treasury, the Commodity Futures Trading Commission, and the Securities and Exchange Commission to conduct a study of issues involving the offering of swap agreements to persons other than eligible contract participants and, before the end of the 1-year period beginning on Dec. 21, 2000, submit a report on findings and conclusions of the study and recommendations for any necessary legislative action to Congress.
Educational Events and Symposia
Pub. L. 106–78, title VI, Oct. 22, 1999, 113 Stat. 1160, provided in part: "That for fiscal year 2000 and thereafter, the Commission [Commodity Futures Trading Commission] is authorized to charge reasonable fees to attendees of Commission sponsored educational events and symposia to cover the Commission's costs of providing those events and symposia, and notwithstanding 31 U.S.C. 3302, said fees shall be credited to this account, to be available without further appropriation."
Similar provisions were contained in the following prior appropriations acts:
Pub. L. 105–277, div. A, §101(a) [title VI], Oct. 21, 1998, 112 Stat. 2681, 2681-24.
Pub. L. 105–86, title VI, Nov. 18, 1997, 111 Stat. 2104.
Pub. L. 104–180, title VI, Aug. 6, 1996, 110 Stat. 1596.
Pub. L. 104–37, title VI, Oct. 21, 1995, 109 Stat. 327.
Pub. L. 103–330, title VI, Sept. 30, 1994, 108 Stat. 2466.
Non-Abatement of Pending Proceedings
Pub. L. 93–463, title IV, §412, Oct. 23, 1974, 88 Stat. 1414, provided that: "Pending proceedings under existing law shall not be abated by reason of any provision of this Act [see Short Title of 1974 Amendment note set out under section 1 of this title] but shall be disposed of pursuant to the applicable provisions of the Commodity Exchange Act, as amended [7 U.S.C. 1 et seq.], in effect prior to the effective date of this Act [see Effective Date of 1974 Amendment note above]."
1 See References in Text note below.
2 So in original. The word "or" probably should not appear.
3 So in original. Probably should be subclause "(III)".
4 So in original. Probably should be "section".
6 So in original. No item (ee) has been enacted.
7 So in original. Probably should be "subparagraph".
8 So in original. Probably should be "governmental".
9 So in original. Probably should be preceded by "section".
§§2a to 4a. Transferred
Editorial Notes
Codification
Section 2a, act Sept. 21, 1922, ch. 369, §2(a)(1)(C), formerly §2(a)(1)(B), as added Pub. L. 97–444, title I, §101(a)(3), Jan. 11, 1983, 96 Stat. 2294, as amended and renumbered, which related to designation of boards of trade as contract markets and approval by and jurisdiction of Commodity Futures Trading Commission and Securities and Exchange Commission, was transferred to section 2(a)(1)(C) of this title.
Section 3, act Sept. 21, 1922, ch. 369, §2(b), 42 Stat. 998, as amended, which related to transactions in interstate commerce, was transferred to section 2(b) of this title.
Section 4, act Sept. 21, 1922, ch. 369, §2(a)(1)(B), formerly §2(a), 42 Stat. 998, as amended and renumbered, which related to liability of principal for act of agent, was transferred to section 2(a)(1)(B) of this title.
Section 4a, act Sept. 21, 1922, ch. 369, §2(a)(2)–(11), as added Pub. L. 93–463, title I, §101(a)(3), Oct. 23, 1974, 88 Stat. 1389, as amended, which related to the Commodity Futures Trading Commission, was transferred to section 2(a)(2) to (11) of this title.
§5. Findings and purpose
(a) Findings
The transactions subject to this chapter are entered into regularly in interstate and international commerce and are affected with a national public interest by providing a means for managing and assuming price risks, discovering prices, or disseminating pricing information through trading in liquid, fair and financially secure trading facilities.
(b) Purpose
It is the purpose of this chapter to serve the public interests described in subsection (a) through a system of effective self-regulation of trading facilities, clearing systems, market participants and market professionals under the oversight of the Commission. To foster these public interests, it is further the purpose of this chapter to deter and prevent price manipulation or any other disruptions to market integrity; to ensure the financial integrity of all transactions subject to this chapter and the avoidance of systemic risk; to protect all market participants from fraudulent or other abusive sales practices and misuses of customer assets; and to promote responsible innovation and fair competition among boards of trade, other markets and market participants.
(Sept. 21, 1922, ch. 369, §3, as added Pub. L. 106–554, §1(a)(5) [title I, §108], Dec. 21, 2000, 114 Stat. 2763, 2763A-383.)
Editorial Notes
Prior Provisions
A prior section 5, acts Sept. 21, 1922, ch. 369, §3, 42 Stat. 999; June 15, 1936, ch. 545, §2, 49 Stat. 1491; Pub. L. 97–444, title II, §203, Jan. 11, 1983, 96 Stat. 2298, stated legislative findings, prior to repeal by Pub. L. 106–554, §1(a)(5) [title I, §108], Dec. 21, 2000, 114 Stat. 2763, 2763A-383.
§6. Regulation of futures trading and foreign transactions
(a) Restriction on futures trading
Unless exempted by the Commission pursuant to subsection (c) or by subsection (e), it shall be unlawful for any person to offer to enter into, to enter into, to execute, to confirm the execution of, or to conduct any office or business anywhere in the United States, its territories or possessions, for the purpose of soliciting or accepting any order for, or otherwise dealing in, any transaction in, or in connection with, a contract for the purchase or sale of a commodity for future delivery (other than a contract which is made on or subject to the rules of a board of trade, exchange, or market located outside the United States, its territories or possessions) unless—
(1) such transaction is conducted on or subject to the rules of a board of trade which has been designated or registered by the Commission as a contract market or derivatives transaction execution facility for such commodity;
(2) such contract is executed or consummated by or through a contract market; and
(3) such contract is evidenced by a record in writing which shows the date, the parties to such contract and their addresses, the property covered and its price, and the terms of delivery: Provided, That each contract market or derivatives transaction execution facility member shall keep such record for a period of three years from the date thereof, or for a longer period if the Commission shall so direct, which record shall at all times be open to the inspection of any representative of the Commission or the Department of Justice.
(b) Regulation of foreign transactions by United States persons
(1) Foreign boards of trade
(A) Registration
The Commission may adopt rules and regulations requiring registration with the Commission for a foreign board of trade that provides the members of the foreign board of trade or other participants located in the United States with direct access to the electronic trading and order matching system of the foreign board of trade, including rules and regulations prescribing procedures and requirements applicable to the registration of such foreign boards of trade. For purposes of this paragraph, "direct access" refers to an explicit grant of authority by a foreign board of trade to an identified member or other participant located in the United States to enter trades directly into the trade matching system of the foreign board of trade. In adopting such rules and regulations, the commission 1 shall consider—
(i) whether any such foreign board of trade is subject to comparable, comprehensive supervision and regulation by the appropriate governmental authorities in the foreign board of trade's home country; and
(ii) any previous commission 1 findings that the foreign board of trade is subject to comparable comprehensive supervision and regulation by the appropriate government authorities in the foreign board of trade's home country.
(B) Linked contracts
The Commission may not permit a foreign board of trade to provide to the members of the foreign board of trade or other participants located in the United States direct access to the electronic trading and order-matching system of the foreign board of trade with respect to an agreement, contract, or transaction that settles against any price (including the daily or final settlement price) of 1 or more contracts listed for trading on a registered entity, unless the Commission determines that—
(i) the foreign board of trade makes public daily trading information regarding the agreement, contract, or transaction that is comparable to the daily trading information published by the registered entity for the 1 or more contracts against which the agreement, contract, or transaction traded on the foreign board of trade settles; and
(ii) the foreign board of trade (or the foreign futures authority that oversees the foreign board of trade)—
(I) adopts position limits (including related hedge exemption provisions) for the agreement, contract, or transaction that are comparable to the position limits (including related hedge exemption provisions) adopted by the registered entity for the 1 or more contracts against which the agreement, contract, or transaction traded on the foreign board of trade settles;
(II) has the authority to require or direct market participants to limit, reduce, or liquidate any position the foreign board of trade (or the foreign futures authority that oversees the foreign board of trade) determines to be necessary to prevent or reduce the threat of price manipulation, excessive speculation as described in section 6a of this title, price distortion, or disruption of delivery or the cash settlement process;
(III) agrees to promptly notify the Commission, with regard to the agreement, contract, or transaction that settles against any price (including the daily or final settlement price) of 1 or more contracts listed for trading on a registered entity, of any change regarding—
(aa) the information that the foreign board of trade will make publicly available;
(bb) the position limits that the foreign board of trade or foreign futures authority will adopt and enforce;
(cc) the position reductions required to prevent manipulation, excessive speculation as described in section 6a of this title, price distortion, or disruption of delivery or the cash settlement process; and
(dd) any other area of interest expressed by the Commission to the foreign board of trade or foreign futures authority;
(IV) provides information to the Commission regarding large trader positions in the agreement, contract, or transaction that is comparable to the large trader position information collected by the Commission for the 1 or more contracts against which the agreement, contract, or transaction traded on the foreign board of trade settles; and
(V) provides the Commission such information as is necessary to publish reports on aggregate trader positions for the agreement, contract, or transaction traded on the foreign board of trade that are comparable to such reports on aggregate trader positions for the 1 or more contracts against which the agreement, contract, or transaction traded on the foreign board of trade settles.
(C) Existing foreign boards of trade
Subparagraphs (A) and (B) shall not be effective with respect to any foreign board of trade to which, prior to July 21, 2010, the Commission granted direct access permission until the date that is 180 days after July 21, 2010.
(2) Persons located in the United States
(A) In general
The Commission may adopt rules and regulations proscribing fraud and requiring minimum financial standards, the disclosure of risk, the filing of reports, the keeping of books and records, the safeguarding of customers' funds, and registration with the Commission by any person located in the United States, its territories or possessions, who engages in the offer or sale of any contract of sale of a commodity for future delivery that is made or to be made on or subject to the rules of a board of trade, exchange, or market located outside the United States, its territories or possessions.
(B) Different requirements
Rules and regulations described in subparagraph (A) may impose different requirements for such persons depending upon the particular foreign board of trade, exchange, or market involved.
(C) Prohibition
Except as provided in paragraphs (1) and (2), no rule or regulation may be adopted by the Commission under this subsection that—
(i) requires Commission approval of any contract, rule, regulation, or action of any foreign board of trade, exchange, or market, or clearinghouse for such board of trade, exchange, or market; or
(ii) governs in any way any rule or contract term or action of any foreign board of trade, exchange, or market, or clearinghouse for such board of trade, exchange, or market.
(c) Public interest exemptions
(1) In order to promote responsible economic or financial innovation and fair competition, the Commission by rule, regulation, or order, after notice and opportunity for hearing, may (on its own initiative or on application of any person, including any board of trade designated or registered as a contract market or derivatives transaction execution facility for transactions for future delivery in any commodity under section 7 of this title) exempt any agreement, contract, or transaction (or class thereof) that is otherwise subject to subsection (a) (including any person or class of persons offering, entering into, rendering advice or rendering other services with respect to, the agreement, contract, or transaction), either unconditionally or on stated terms or conditions or for stated periods and either retroactively or prospectively, or both, from any of the requirements of subsection (a), or from any other provision of this chapter (except subparagraphs (C)(ii) and (D) of section 2(a)(1) of this title, 2 except that—
(A) unless the Commission is expressly authorized by any provision described in this subparagraph to grant exemptions, with respect to amendments made by subtitle A of the Wall Street Transparency and Accountability Act of 2010—
(i) with respect to—
(I) paragraphs (2), (3), (4), (5), and (7), paragraph (18)(A)(vii)(III), paragraphs (23), (24), (31), (32), (38), (39), (41), (42), (46), (47), (48), and (49) of section 1a of this title, and sections 2(a)(13), 2(c)(1)(D), 6a(a), 6a(b), 6d(c), 6d(d), 6r, 6s, 7a–1(a), 7a–1(b), 7(d), 7(g), 7(h),3 7a–1(c), 7a–1(i), 12(e),4 and 24a of this title; and
(II) section 206(e) 5 of the Gramm-Leach-Bliley Act (Public Law 106–102; 15 U.S.C. 78c note); and
(ii) in sections 721(c) and 742 of the Dodd-Frank Wall Street Reform and Consumer Protection Act; and
(B) the Commission and the Securities and Exchange Commission may by rule, regulation, or order jointly exclude any agreement, contract, or transaction from section 2(a)(1)(D) of this title) 6 if the Commissions determine that the exemption would be consistent with the public interest.
(2) The Commission shall not grant any exemption under paragraph (1) from any of the requirements of subsection (a) unless the Commission determines that—
(A) the requirement should not be applied to the agreement, contract, or transaction for which the exemption is sought and that the exemption would be consistent with the public interest and the purposes of this chapter; and
(B) the agreement, contract, or transaction—
(i) will be entered into solely between appropriate persons; and
(ii) will not have a material adverse effect on the ability of the Commission or any contract market or derivatives transaction execution facility to discharge its regulatory or self-regulatory duties under this chapter.
(3) For purposes of this subsection, the term "appropriate person" shall be limited to the following persons or classes thereof:
(A) A bank or trust company (acting in an individual or fiduciary capacity).
(B) A savings association.
(C) An insurance company.
(D) An investment company subject to regulation under the Investment Company Act of 1940 (15 U.S.C. 80a–1 et seq.).
(E) A commodity pool formed or operated by a person subject to regulation under this chapter.
(F) A corporation, partnership, proprietorship, organization, trust, or other business entity with a net worth exceeding $1,000,000 or total assets exceeding $5,000,000, or the obligations of which under the agreement, contract or transaction are guaranteed or otherwise supported by a letter of credit or keepwell, support, or other agreement by any such entity or by an entity referred to in subparagraph (A), (B), (C), (H), (I), or (K) of this paragraph.
(G) An employee benefit plan with assets exceeding $1,000,000, or whose investment decisions are made by a bank, trust company, insurance company, investment adviser registered under the Investment Advisers Act of 1940 [15 U.S.C. 80b–1 et seq.], or a commodity trading advisor subject to regulation under this chapter.
(H) Any governmental entity (including the United States, any state,7 or any foreign government) or political subdivision thereof, or any multinational or supranational entity or any instrumentality, agency, or department of any of the foregoing.
(I) A broker-dealer subject to regulation under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) acting on its own behalf or on behalf of another appropriate person.
(J) A futures commission merchant, floor broker, or floor trader subject to regulation under this chapter acting on its own behalf or on behalf of another appropriate person.
(K) Such other persons that the Commission determines to be appropriate in light of their financial or other qualifications, or the applicability of appropriate regulatory protections.
(4) During the pendency of an application for an order granting an exemption under paragraph (1), the Commission may limit the public availability of any information received from the applicant if the applicant submits a written request to limit disclosure contemporaneous with the application, and the Commission determines that—
(A) the information sought to be restricted constitutes a trade secret; or
(B) public disclosure of the information would result in material competitive harm to the applicant.
(5) The Commission may—
(A) promptly following October 28, 1992, or upon application by any person, exercise the exemptive authority granted under paragraph (1) with respect to classes of hybrid instruments that are predominantly securities or depository instruments, to the extent that such instruments may be regarded as subject to the provisions of this chapter; or
(B) promptly following October 28, 1992, or upon application by any person, exercise the exemptive authority granted under paragraph (1) effective as of October 23, 1974, with respect to classes of swap agreements (as defined in section 101 of title 11) that are not part of a fungible class of agreements that are standardized as to their material economic terms, to the extent that such agreements may be regarded as subject to the provisions of this chapter.
Any exemption pursuant to this paragraph shall be subject to such terms and conditions as the Commission shall determine to be appropriate pursuant to paragraph (1).
(6) If the Commission determines that the exemption would be consistent with the public interest and the purposes of this chapter, the Commission shall, in accordance with paragraphs (1) and (2), exempt from the requirements of this chapter an agreement, contract, or transaction that is entered into—
(A) pursuant to a tariff or rate schedule approved or permitted to take effect by the Federal Energy Regulatory Commission;
(B) pursuant to a tariff or rate schedule establishing rates or charges for, or protocols governing, the sale of electric energy approved or permitted to take effect by the regulatory authority of the State or municipality having jurisdiction to regulate rates and charges for the sale of electric energy within the State or municipality; or
(C) between entities described in section 824(f) of title 16.
(d) Effect of exemption on investigative authority of Commission
The granting of an exemption under this section shall not affect the authority of the Commission under any other provision of this chapter to conduct investigations in order to determine compliance with the requirements or conditions of such exemption or to take enforcement action for any violation of any provision of this chapter or any rule, regulation or order thereunder caused by the failure to comply with or satisfy such conditions or requirements.
(e) Liability of registered persons trading on a foreign board of trade
(1) In general
A person registered with the Commission, or exempt from registration by the Commission, under this chapter may not be found to have violated subsection (a) with respect to a transaction in, or in connection with, a contract of sale of a commodity for future delivery if the person—
(A) has reason to believe that the transaction and the contract is made on or subject to the rules of a foreign board of trade that is—
(i) legally organized under the laws of a foreign country;
(ii) authorized to act as a board of trade by a foreign futures authority; and
(iii) subject to regulation by the foreign futures authority; and
(B) has not been determined by the Commission to be operating in violation of subsection (a).
(2) Rule of construction
Nothing in this subsection shall be construed as implying or creating any presumption that a board of trade, exchange, or market is located outside the United States, or its territories or possessions, for purposes of subsection (a).
(Sept. 21, 1922, ch. 369, §4, 42 Stat. 999; June 15, 1936, ch. 545, §§2, 4, 49 Stat. 1491, 1492; Pub. L. 93–463, title I, §103(a), (f), Oct. 23, 1974, 88 Stat. 1392; Pub. L. 97–444, title II, §204, Jan. 11, 1983, 96 Stat. 2299; Pub. L. 102–546, title V, §502(a), Oct. 28, 1992, 106 Stat. 3629; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(3)], Dec. 21, 2000, 114 Stat. 2763, 2763A-406; Pub. L. 111–203, title VII, §§721(d), 722(f), 738(a), (b), July 21, 2010, 124 Stat. 1671, 1674, 1726, 1728.)
Editorial Notes
References in Text
Subtitle A of the Wall Street Transparency and Accountability Act of 2010, referred to in subsec. (c)(1)(A), is subtitle A (§§721–754) of title VII of Pub. L. 111–203, July 21, 2010, 124 Stat. 1641. For complete classification of subtitle A to the Code, see Tables.
Section 12(e) of this title, referred to in subsec. (c)(1)(A)(i)(I), was in the original a reference to section "8e" and has been translated as if the reference had been to section "8(e)" to reflect the probable intent of Congress. Section 8e of act Sept. 21, 1922, which was formerly classified to section 12e of this title, was repealed by Pub. L. 106–554, §1(a)(5) [title I, §123(a)(21)], Dec. 21, 2000, 114 Stat. 2763, 2763A-410.
The Dodd-Frank Wall Street Reform and Consumer Protection Act, referred to in subsec. (c)(1)(A)(ii), is Pub. L. 111–203, July 21, 2010, 124 Stat. 1376. Section 721(c) of the Act is classified to section 8321(b) of Title 15, Commerce and Trade. Section 742 of the Act amended section 2 of this title and provisions set out as a note under section 78c of Title 15. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of Title 12, Banks and Banking, and Tables.
The Investment Company Act of 1940, referred to in subsec. (c)(3)(D), is title I of act Aug. 22, 1940, ch. 686, 54 Stat. 789, which is classified generally to subchapter I (§80a–1 et seq.) of chapter 2D of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 80a–51 of Title 15 and Tables.
The Investment Advisers Act of 1940, referred to in subsec. (c)(3)(G), is title II of act Aug. 22, 1940, ch. 686, 54 Stat. 847, which is classified generally to subchapter II (§80b–1 et seq.) of chapter 2D of Title 15. For complete classification of this Act to the Code, see section 80b–20 of Title 15 and Tables.
The Securities Exchange Act of 1934, referred to in subsec. (c)(3)(I), is act June 6, 1934, ch. 404, 48 Stat. 881, which is classified principally to chapter 2B (§78a et seq.) of Title 15. For complete classification of this Act to the Code, see section 78a of Title 15 and Tables.
Amendments
2010—Subsec. (a). Pub. L. 111–203, §738(b)(1), inserted "or by subsection (e)" after "Unless exempted by the Commission pursuant to subsection (c)" in introductory provisions.
Subsec. (b). Pub. L. 111–203, §738(a)(1)–(3), designated existing provisions as par. (2), designated the first to third sentences as subpars. (A) to (C), respectively, redesignated former pars. (1) and (2) as cls. (i) and (ii), respectively, of subpar. (C), inserted headings, in subpar. (B), substituted "Rules and regulations described in subparagraph (A)" for "Such rules and regulations", in the introductory provisions of subpar. (C), substituted "Except as provided in paragraphs (1) and (2), no rule or regulation" for "No rule or regulation" and "that—" for "that", and, in subpar. (C)(i), substituted "market; or" for "market, or".
Subsec. (b)(1). Pub. L. 111–203, §738(a)(4), added par. (1).
Subsec. (c)(1). Pub. L. 111–203, §721(d), substituted "except that—" for "except that the Commission and the Securities and Exchange Commission may by rule, regulation, or order jointly exclude any agreement, contract, or transaction from section 2(a)(1)(D) of this title), if the Commission determines that the exemption would be consistent with the public interest." and added subpars. (A) and (B).
Subsec. (c)(6). Pub. L. 111–203, §722(f), added par. (6).
Subsec. (e). Pub. L. 111–203, §738(b)(2), added subsec. (e).
2000—Subsec. (a)(1). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(3)(A)(i)], substituted "designated or registered by the Commission as a contract market or derivatives transaction execution facility for" for "designated by the Commission as a 'contract market' for".
Subsec. (a)(2). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(3)(A)(ii)], struck out "member of such" after "by or through a".
Subsec. (a)(3). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(3)(A)(iii)], inserted "or derivatives transaction execution facility" after "contract market".
Subsec. (c)(1). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(3)(B)(i)], substituted "designated or registered as a contract market or derivatives transaction execution facility" for "designated as a contract market" and "subparagraphs (C)(ii) and (D) of section 2(a)(1) of this title, except that the Commission and the Securities and Exchange Commission may by rule, regulation, or order jointly exclude any agreement, contract, or transaction from section 2(a)(1)(D) of this title" for "section 2a of this title".
Subsec. (c)(2)(B)(ii). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(3)(B)(ii)], inserted "or derivatives transaction execution facility" after "contract market".
1992—Subsec. (a). Pub. L. 102–546, §502(a)(1), substituted "Unless exempted by the Commission pursuant to subsection (c) of this section, it shall be unlawful" for "It shall be unlawful".
Subsecs. (c), (d). Pub. L. 102–546, §502(a)(2), added subsecs. (c) and (d).
1983—Pub. L. 97–444 amended section generally, combining into subsec. (a) existing provisions of this section together with provisions formerly contained in section 6h(1) of this title, relating to the conduct of offices or places of business anywhere in the United States or its territories that are used for dealing in commodities for future delivery unless such dealings are executed or consummated by or through a member of a contract market, and adding subsec. (b).
1974—Pub. L. 93–463 substituted "Commission" for "Secretary of Agriculture" and "United States Department of Agriculture".
1936—Act June 15, 1936, §2, substituted "commodity" for "grain" wherever appearing.
Act June 15, 1936, §4, struck out par. (a) and combined par. (b) with first par.
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date of 1936 Amendment
Amendment by act June 15, 1936, effective 90 days after June 15, 1936, see section 13 of that act, set out as a note under section 1 of this title.
1 So in original. Probably should be "Commission".
2 So in original. A closing parenthesis probably should precede the comma.
3 So in original. Section 7 of this title does not contain subsecs. (g) and (h).
4 See References in Text note below.
5 So in original. Section 206 of the Act does not contain a subsec. (e).
6 So in original. The closing parenthesis probably should not appear.
7 So in original. Probably should be capitalized.
§6a. Excessive speculation
(a) Burden on interstate commerce; trading or position limits
(1) In general
Excessive speculation in any commodity under contracts of sale of such commodity for future delivery made on or subject to the rules of contract markets or derivatives transaction execution facilities, or swaps that perform or affect a significant price discovery function with respect to registered entities causing sudden or unreasonable fluctuations or unwarranted changes in the price of such commodity, is an undue and unnecessary burden on interstate commerce in such commodity. For the purpose of diminishing, eliminating, or preventing such burden, the Commission shall, from time to time, after due notice and opportunity for hearing, by rule, regulation, or order, proclaim and fix such limits on the amounts of trading which may be done or positions which may be held by any person, including any group or class of traders, under contracts of sale of such commodity for future delivery on or subject to the rules of any contract market or derivatives transaction execution facility, or swaps traded on or subject to the rules of a designated contract market or a swap execution facility, or swaps not traded on or subject to the rules of a designated contract market or a swap execution facility that performs a significant price discovery function with respect to a registered entity, as the Commission finds are necessary to diminish, eliminate, or prevent such burden. In determining whether any person has exceeded such limits, the positions held and trading done by any persons directly or indirectly controlled by such person shall be included with the positions held and trading done by such person; and further, such limits upon positions and trading shall apply to positions held by, and trading done by, two or more persons acting pursuant to an expressed or implied agreement or understanding, the same as if the positions were held by, or the trading were done by, a single person. Nothing in this section shall be construed to prohibit the Commission from fixing different trading or position limits for different commodities, markets, futures, or delivery months, or for different number of days remaining until the last day of trading in a contract, or different trading limits for buying and selling operations, or different limits for the purposes of paragraphs (1) and (2) of subsection (b) of this section, or from exempting transactions normally known to the trade as "spreads" or "straddles" or "arbitrage" or from fixing limits applying to such transactions or positions different from limits fixed for other transactions or positions. The word "arbitrage" in domestic markets shall be defined to mean the same as "spread" or "straddle". The Commission is authorized to define the term "international arbitrage".
(2) Establishment of limitations
(A) In general
In accordance with the standards set forth in paragraph (1) of this subsection and consistent with the good faith exception cited in subsection (b)(2), with respect to physical commodities other than excluded commodities as defined by the Commission, the Commission shall by rule, regulation, or order establish limits on the amount of positions, as appropriate, other than bona fide hedge positions, that may be held by any person with respect to contracts of sale for future delivery or with respect to options on the contracts or commodities traded on or subject to the rules of a designated contract market.
(B) Timing
(i) Exempt commodities
For exempt commodities, the limits required under subparagraph (A) shall be established within 180 days after July 21, 2010.
(ii) Agricultural commodities
For agricultural commodities, the limits required under subparagraph (A) shall be established within 270 days after July 21, 2010.
(C) Goal
In establishing the limits required under subparagraph (A), the Commission shall strive to ensure that trading on foreign boards of trade in the same commodity will be subject to comparable limits and that any limits to be imposed by the Commission will not cause price discovery in the commodity to shift to trading on the foreign boards of trade.
(3) Specific limitations
In establishing the limits required in paragraph (2), the Commission, as appropriate, shall set limits—
(A) on the number of positions that may be held by any person for the spot month, each other month, and the aggregate number of positions that may be held by any person for all months; and
(B) to the maximum extent practicable, in its discretion—
(i) to diminish, eliminate, or prevent excessive speculation as described under this section;
(ii) to deter and prevent market manipulation, squeezes, and corners;
(iii) to ensure sufficient market liquidity for bona fide hedgers; and
(iv) to ensure that the price discovery function of the underlying market is not disrupted.
(4) Significant price discovery function
In making a determination whether a swap performs or affects a significant price discovery function with respect to regulated markets, the Commission shall consider, as appropriate:
(A) Price linkage
The extent to which the swap uses or otherwise relies on a daily or final settlement price, or other major price parameter, of another contract traded on a regulated market based upon the same underlying commodity, to value a position, transfer or convert a position, financially settle a position, or close out a position.
(B) Arbitrage
The extent to which the price for the swap is sufficiently related to the price of another contract traded on a regulated market based upon the same underlying commodity so as to permit market participants to effectively arbitrage between the markets by simultaneously maintaining positions or executing trades in the swaps on a frequent and recurring basis.
(C) Material price reference
The extent to which, on a frequent and recurring basis, bids, offers, or transactions in a contract traded on a regulated market are directly based on, or are determined by referencing, the price generated by the swap.
(D) Material liquidity
The extent to which the volume of swaps being traded in the commodity is sufficient to have a material effect on another contract traded on a regulated market.
(E) Other material factors
Such other material factors as the Commission specifies by rule or regulation as relevant to determine whether a swap serves a significant price discovery function with respect to a regulated market.
(5) Economically equivalent contracts
(A) Notwithstanding any other provision of this section, the Commission shall establish limits on the amount of positions, including aggregate position limits, as appropriate, other than bona fide hedge positions, that may be held by any person with respect to swaps that are economically equivalent to contracts of sale for future delivery or to options on the contracts or commodities traded on or subject to the rules of a designated contract market subject to paragraph (2).
(B) In establishing limits pursuant to subparagraph (A), the Commission shall—
(i) develop the limits concurrently with limits established under paragraph (2), and the limits shall have similar requirements as under paragraph (3)(B); and
(ii) establish the limits simultaneously with limits established under paragraph (2).
(6) Aggregate position limits
The Commission shall, by rule or regulation, establish limits (including related hedge exemption provisions) on the aggregate number or amount of positions in contracts based upon the same underlying commodity (as defined by the Commission) that may be held by any person, including any group or class of traders, for each month across—
(A) contracts listed by designated contract markets;
(B) with respect to an agreement contract, or transaction that settles against any price (including the daily or final settlement price) of 1 or more contracts listed for trading on a registered entity, contracts traded on a foreign board of trade that provides members or other participants located in the United States with direct access to its electronic trading and order matching system; and
(C) swap contracts that perform or affect a significant price discovery function with respect to regulated entities.
(7) Exemptions
The Commission, by rule, regulation, or order, may exempt, conditionally or unconditionally, any person or class of persons, any swap or class of swaps, any contract of sale of a commodity for future delivery or class of such contracts, any option or class of options, or any transaction or class of transactions from any requirement it may establish under this section with respect to position limits.
(b) Prohibition on trading or positions in excess of limits fixed by Commission
The Commission shall, in such rule, regulation, or order, fix a reasonable time (not to exceed ten days) after the promulgation of the rule, regulation, or order; after which, and until such rule, regulation, or order is suspended, modified, or revoked, it shall be unlawful for any person—
(1) directly or indirectly to buy or sell, or agree to buy or sell, under contracts of sale of such commodity for future delivery on or subject to the rules of the contract market or markets, or swap execution facility or facilities with respect to a significant price discovery contract, to which the rule, regulation, or order applies, any amount of such commodity during any one business day in excess of any trading limit fixed for one business day by the Commission in such rule, regulation, or order for or with respect to such commodity; or
(2) directly or indirectly to hold or control a net long or a net short position in any commodity for future delivery on or subject to the rules of any contract market or swap execution facility with respect to a significant price discovery contract in excess of any position limit fixed by the Commission for or with respect to such commodity: Provided, That such position limit shall not apply to a position acquired in good faith prior to the effective date of such rule, regulation, or order.
(c) Applicability to bona fide hedging transactions or positions
(1) No rule, regulation, or order issued under subsection (a) of this section shall apply to transactions or positions which are shown to be bona fide hedging transactions or positions as such terms shall be defined by the Commission by rule, regulation, or order consistent with the purposes of this chapter. Such terms may be defined to permit producers, purchasers, sellers, middlemen, and users of a commodity or a product derived therefrom to hedge their legitimate anticipated business needs for that period of time into the future for which an appropriate futures contract is open and available on an exchange. To determine the adequacy of this chapter and the powers of the Commission acting thereunder to prevent unwarranted price pressures by large hedgers, the Commission shall monitor and analyze the trading activities of the largest hedgers, as determined by the Commission, operating in the cattle, hog, or pork belly markets and shall report its findings and recommendations to the Senate Committee on Agriculture, Nutrition, and Forestry and the House Committee on Agriculture in its annual reports for at least two years following January 11, 1983.
(2) For the purposes of implementation of subsection (a)(2) for contracts of sale for future delivery or options on the contracts or commodities, the Commission shall define what constitutes a bona fide hedging transaction or position as a transaction or position that—
(A)(i) represents a substitute for transactions made or to be made or positions taken or to be taken at a later time in a physical marketing channel;
(ii) is economically appropriate to the reduction of risks in the conduct and management of a commercial enterprise; and
(iii) arises from the potential change in the value of—
(I) assets that a person owns, produces, manufactures, processes, or merchandises or anticipates owning, producing, manufacturing, processing, or merchandising;
(II) liabilities that a person owns or anticipates incurring; or
(III) services that a person provides, purchases, or anticipates providing or purchasing; or
(B) reduces risks attendant to a position resulting from a swap that—
(i) was executed opposite a counterparty for which the transaction would qualify as a bona fide hedging transaction pursuant to subparagraph (A); or
(ii) meets the requirements of subparagraph (A).
(d) Persons subject to regulation; applicability to transactions made by or on behalf of United States
This section shall apply to a person that is registered as a futures commission merchant, an introducing broker, or a floor broker under authority of this chapter only to the extent that transactions made by such person are made on behalf of or for the account or benefit of such person. This section shall not apply to transactions made by, or on behalf of, or at the direction of, the United States, or a duly authorized agency thereof.
(e) Rulemaking power and penalties for violation
Nothing in this section shall prohibit or impair the adoption by any contract market, derivatives transaction execution facility, or by any other board of trade licensed, designated, or registered by the Commission or by any electronic trading facility of any bylaw, rule, regulation, or resolution fixing limits on the amount of trading which may be done or positions which may be held by any person under contracts of sale of any commodity for future delivery traded on or subject to the rules of such contract market or derivatives transaction execution facility or on an electronic trading facility, or under options on such contracts or commodities traded on or subject to the rules of such contract market, derivatives transaction execution facility, or electronic trading facility or such board of trade: Provided, That if the Commission shall have fixed limits under this section for any contract or under section 6c of this title for any commodity option, then the limits fixed by the bylaws, rules, regulations, and resolutions adopted by such contract market, derivatives transaction execution facility, or electronic trading facility or such board of trade shall not be higher than the limits fixed by the Commission. It shall be a violation of this chapter for any person to violate any bylaw, rule, regulation, or resolution of any contract market, derivatives transaction execution facility, or other board of trade licensed, designated, or registered by the Commission or electronic trading facility with respect to a significant price discovery contract fixing limits on the amount of trading which may be done or positions which may be held by any person under contracts of sale of any commodity for future delivery or under options on such contracts or commodities, if such bylaw, rule, regulation, or resolution has been approved by the Commission or certified by a registered entity pursuant to section 7a–2(c)(1) of this title: Provided, That the provisions of section 13(a)(5) of this title shall apply only to those who knowingly violate such limits.
(Sept. 21, 1922, ch. 369, §4a, as added June 15, 1936, ch. 545, §5, 49 Stat. 1492; amended July 24, 1956, ch. 690, §1, 70 Stat. 630; Pub. L. 90–258, §§2–4, Feb. 19, 1968, 82 Stat. 26, 27; Pub. L. 93–463, title IV, §§403, 404, Oct. 23, 1974, 88 Stat. 1413; Pub. L. 94–16, §4, Apr. 16, 1975, 89 Stat. 78; Pub. L. 97–444, title II, §205, Jan. 11, 1983, 96 Stat. 2299; Pub. L. 102–546, title IV, §402(1)(A), (2), Oct. 28, 1992, 106 Stat. 3624; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(4)], Dec. 21, 2000, 114 Stat. 2763, 2763A-407; Pub. L. 110–234, title XIII, §§13105(a), 13203(g), May 22, 2008, 122 Stat. 1434, 1439; Pub. L. 110–246, §4(a), title XIII, §§13105(a), 13203(g), June 18, 2008, 122 Stat. 1664, 2196, 2201; Pub. L. 111–203, title VII, §737(a)–(c), July 21, 2010, 124 Stat. 1722, 1725.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2010—Subsec. (a). Pub. L. 111–203, §737(a)(1)–(3), designated existing provisions as par. (1), inserted heading, substituted "swaps that perform or affect a significant price discovery function with respect to registered entities" for "on electronic trading facilities with respect to a significant price discovery contract", inserted ", including any group or class of traders," after "held by any person", and substituted "swaps traded on or subject to the rules of a designated contract market or a swap execution facility, or swaps not traded on or subject to the rules of a designated contract market or a swap execution facility that performs a significant price discovery function with respect to a registered entity," for "on an electronic trading facility with respect to a significant price discovery contract,".
Subsec. (a)(2) to (7). Pub. L. 111–203, §737(a)(4), added pars. (2) to (7).
Subsec. (b)(1). Pub. L. 111–203, §737(b)(1), substituted "or swap execution facility or facilities" for "or derivatives transaction execution facility or facilities or electronic trading facility".
Subsec. (b)(2). Pub. L. 111–203, §737(b)(2), which directed substitution of "or swap execution facility" for "or derivatives transaction execution facility or facilities or electronic trading facility", was executed by making the substitution for "or derivatives transaction execution facility or electronic trading facility" to reflect the probable intent of Congress.
Subsec. (c). Pub. L. 111–203, §737(c), designated existing provisions as par. (1) and added par. (2).
2008—Subsec. (a). Pub. L. 110–246, §13203(g)(1), inserted ", or on electronic trading facilities with respect to a significant price discovery contract" after "execution facilities" in first sentence and ", or on an electronic trading facility with respect to a significant price discovery contract," after "execution facility" in second sentence.
Subsec. (b)(1). Pub. L. 110–246, §13203(g)(2)(A), inserted "or electronic trading facility with respect to a significant price discovery contract" after "facility or facilities".
Subsec. (b)(2). Pub. L. 110–246, §13203(g)(2)(B), inserted "or electronic trading facility with respect to a significant price discovery contract" after "execution facility".
Subsec. (e). Pub. L. 110–246, §13203(g)(3), in first sentence, inserted "or by any electronic trading facility" after "registered by the Commission", inserted "or on an electronic trading facility" after "derivatives transaction execution facility" the second place it appeared, and inserted "or electronic trading facility" before "or such board of trade" in two places, and, in second sentence, inserted "or electronic trading facility with respect to a significant price discovery contract" after "registered by the Commission".
Pub. L. 110–246, §13105(a), inserted "or certified by a registered entity pursuant to section 7a–2(c)(1) of this title" after "approved by the Commission" and substituted "section 13(a)(5)" for "section 13(c)".
2000—Subsec. (a). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(4)(A)], inserted "or derivatives transaction execution facilities" after "contract markets" in first sentence and "or derivatives transaction execution facility" after "contract market" in second sentence.
Subsec. (b)(1). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(4)(B)(i)], inserted ", or derivatives transaction execution facility or facilities," after "markets".
Subsec. (b)(2). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(4)(B)(ii)], inserted "or derivatives transaction execution facility" after "contract market".
Subsec. (e). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(4)(C)], substituted "contract market, derivatives transaction execution facility, or" for "contract market or" wherever appearing, "licensed, designated, or registered" for "licensed or designated" in two places, and "contract market or derivatives transaction execution facility, or" for "contract market, or".
1992—Subsec. (a). Pub. L. 102–546, §402(1)(A), (2)(A), (C), redesignated par. (1) as subsec. (a), substituted "Commission" for "commission" wherever appearing except in last sentence, and substituted "paragraphs (1) and (2) of subsection (b) of this section" for "subparagraphs (A) and (B) of paragraph (2)".
Subsec. (b). Pub. L. 102–546, §402(1)(A), (2)(C), (D), redesignated par. (2) as subsec. (b) and subpars. (A) and (B) as pars. (1) and (2), respectively, and substituted "Commission" for "commission" wherever appearing.
Subsec. (c). Pub. L. 102–546, §402(2)(B), (C), redesignated par. (3) as subsec. (c) and substituted "subsection (a)" for "paragraph (1)".
Subsecs. (d), (e). Pub. L. 102–546, §402(2)(C), redesignated pars. (4) and (5) as subsecs. (d) and (e), respectively.
1983—Par. (1). Pub. L. 97–444, §205(1), (2), substituted "by rule, regulation, or order, proclaim" for "by order, proclaim" and inserted "or for different number of days remaining until the last day of trading in a contract," after "delivery months".
Par. (2). Pub. L. 97–444, §205(1), (3), substituted "after the promulgation of the rule, regulation, or order" for "after the order's promulgation" in provisions before subpar. (A) and substituted "rule, regulation, or order" for "order" in provisions before subpar. (A) and in subpars. (A) and (B).
Par. (3). Pub. L. 97–444, §205(4), substituted "No rule, regulation, or order issued under paragraph (1) of this section shall apply to transactions or positions which are shown to be bona fide hedging transactions or positions as such terms shall be defined by the Commission by rule, regulation, or order consistent with the purposes of this chapter" for "No order issued under paragraph (1) of this section shall apply to transactions or positions which are shown to be bona fide hedging transactions or positions as such terms shall be defined by the Commission within one hundred and eighty days after the effective date of the Commodity Futures Trading Commission Act of 1974 by order consistent with the purposes of this chapter" and inserted "Such terms may be defined to permit producers, purchasers, sellers, middlemen, and users of a commodity or a product derived therefrom to hedge their legitimate anticipated business needs for that period of time into the future for which an appropriate futures contract is open and available on an exchange. To determine the adequacy of this chapter and the powers of the Commission acting thereunder to prevent unwarranted price pressures by large hedgers, the Commission shall monitor and analyze the trading activities of the largest hedgers, as determined by the Commission, operating in the cattle, hog, or pork belly markets and shall report its findings and recommendations to the Senate Committee on Agriculture, Nutrition, and Forestry and the House Committee on Agriculture in its annual reports for at least two years following January 11, 1983."
Par. (4). Pub. L. 97–444, §205(5), substituted "a futures commission merchant, an introducing broker, or a floor broker" for "a futures commission merchant or as floor broker".
Par. (5). Pub. L. 97–444, §205(6), added par. (5).
1975—Par. (3). Pub. L. 94–16 substituted "one hundred and eighty days" for "ninety days".
1974—Par. (1). Pub. L. 93–463, §403, inserted "or 'arbitrage' " after "or 'straddles' ", inserted definition of "arbitrage", and authorized Commission to define "international arbitrage".
Par. (3). Pub. L. 93–463, §404, directed Commission to define "bona fide hedging transactions or positions" within 90 days after the effective date of the Commodity Futures Trading Commission Act of 1974 and struck out provisions which enumerated the factors to be taken into account in determining whether a hedging transaction or position was a bona fide transaction or position.
1968—Par. (1). Pub. L. 90–258, §2, substituted in second sentence "amounts of trading" for "amount of trading", inserted "which may be done or positions which may be held by any person" before "under contracts of sale", and struck out "which may be done" after "rules of any contract market", inserted third sentence providing for inclusion of controlled positions and trading in determining whether prescribed position or trading limits have been exceeded and for application of such position and trading limits to activities of two or more persons acting pursuant to agreement or understanding as if the activities of a single person, and included in fourth, formerly third, sentence references to position limits and to positions, substituted "normally" for "commonly", and struck out "trading" from "from fixing trading limits" and "from trading limits".
Par. (2)(B). Pub. L. 90–258, §3, substituted prohibition against holding of net long or net short positions in excess of any position limit fixed by the Commission for former prohibition of purchases or sales which result in net long or net short positions in excess of trading limits fixed by the Commission and provided that the position limit shall not apply to a position acquired in good faith prior to the effective date of the order.
Par. (3). Pub. L. 90–258, §4, included references to positions, made hedging applicable to short and long positions, substituted "contract market" for "board of trade", and required the activities to be those of the same person to constitute hedging.
1956—Par. (3)(C). Act July 24, 1956, added subpar. (C).
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Pub. L. 111–203, title VII, §737(d), July 21, 2010, 124 Stat. 1725, provided that: "This section [amending this section] and the amendments made by this section shall become effective on the date of the enactment of this section [July 21, 2010]."
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, except as otherwise provided, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Amendment by section 13203(g) of Pub. L. 110–246 effective June 18, 2008, see section 13204(a) of Pub. L. 110–246, set out as a note under section 2 of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1974 Amendment
Pub. L. 93–463, title IV, §404, Oct. 23, 1974, 88 Stat. 1413, provided that the amendment of par. (3) which struck out provisions that enumerated the factors to be taken into account in determining whether a hedging transaction or position was a bona fide transaction or position, was effective immediately upon the enactment of Pub. L. 93–463, which was approved Oct. 23, 1974.
Amendment by Pub. L. 93–463 of par. (1) and that part of par. (3) directing the Commission to define "bona fide hedging transactions or positions" effective so as to allow implementation of all changes effected by this amendment to be carried out after Oct. 23, 1974, and before as well as after the 180th day thereafter, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–258 effective 120 days after Feb. 19, 1968, see section 28 of Pub. L. 90–258, set out as a note under section 2 of this title.
Effective Date of 1956 Amendment
Act July 24, 1956, ch. 690, §2, 70 Stat. 630, provided that: "This Act [amending this section] shall take effect sixty days after the date of its enactment [July 24, 1956]."
Effective Date
For effective date of section, see section 13 of act June 15, 1936, set out as an Effective Date of 1936 Amendment note under section 1 of this title.
Regulations Defining Bona Fide Hedging Transactions and Positions
Pub. L. 93–463, title IV, §404, Oct. 23, 1974, 88 Stat. 1413, provided in part: "That notwithstanding any other provision of law, the Secretary of Agriculture, immediately upon the enactment of the Commodity Futures Trading Commission Act of 1974 [which was approved on Oct. 23, 1974], is authorized and directed to promulgate regulations defining bona fide hedging transactions and positions: And provided further, That until the Secretary issues such regulations defining bona fide hedging transactions and positions and such regulations are in full force and effect, such terms shall continue to be defined as set forth in the Commodity Exchange Act [par. (3) of this section] prior to its amendment by the Commodity Futures Trading Commission Act of 1974 [Pub. L. 93–463]."
§6b. Contracts designed to defraud or mislead
(a) Unlawful actions
It shall be unlawful—
(1) for any person, in or in connection with any order to make, or the making of, any contract of sale of any commodity in interstate commerce or for future delivery that is made, or to be made, on or subject to the rules of a designated contract market, for or on behalf of any other person; or
(2) for any person, in or in connection with any order to make, or the making of, any contract of sale of any commodity for future delivery, or swap, that is made, or to be made, for or on behalf of, or with, any other person, other than on or subject to the rules of a designated contract market—
(A) to cheat or defraud or attempt to cheat or defraud the other person;
(B) willfully to make or cause to be made to the other person any false report or statement or willfully to enter or cause to be entered for the other person any false record;
(C) willfully to deceive or attempt to deceive the other person by any means whatsoever in regard to any order or contract or the disposition or execution of any order or contract, or in regard to any act of agency performed, with respect to any order or contract for or, in the case of paragraph (2), with the other person; or
(D)(i) to bucket an order if the order is either represented by the person as an order to be executed, or is required to be executed, on or subject to the rules of a designated contract market; or
(ii) to fill an order by offset against the order or orders of any other person, or willfully and knowingly and without the prior consent of the other person to become the buyer in respect to any selling order of the other person, or become the seller in respect to any buying order of the other person, if the order is either represented by the person as an order to be executed, or is required to be executed, on or subject to the rules of a designated contract market unless the order is executed in accordance with the rules of the designated contract market.
(b) Clarification
Subsection (a)(2) of this section shall not obligate any person, in or in connection with a transaction in a contract of sale of a commodity for future delivery, or swap, with another person, to disclose to the other person nonpublic information that may be material to the market price, rate, or level of the commodity or transaction, except as necessary to make any statement made to the other person in or in connection with the transaction not misleading in any material respect.
(c) Buying and selling orders for commodity
Nothing in this section or in any other section of this chapter shall be construed to prevent a futures commission merchant or floor broker who shall have in hand, simultaneously, buying and selling orders at the market for different principals for a like quantity of a commodity for future delivery in the same month executing such buying and selling orders at the market price: Provided, That any such execution shall take place on the floor of the exchange where such orders are to be executed at public outcry across the ring and shall be duly reported, recorded, and cleared in the same manner as other orders executed on such exchange: And provided further, That such transactions shall be made in accordance with such rules and regulations as the Commission may promulgate regarding the manner of the execution of such transactions.
(d) Inapplicability to transactions on foreign exchanges
Nothing in this section shall apply to any activity that occurs on a board of trade, exchange, or market, or clearinghouse for such board of trade, exchange, or market, located outside the United States, or territories or possessions of the United States, involving any contract of sale of a commodity for future delivery that is made, or to be made, on or subject to the rules of such board of trade, exchange, or market.
(e) Contracts of sale on group or index of securities
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails, or of any facility of any registered entity, in or in connection with any order to make, or the making of, any contract of sale of any commodity for future delivery (or option on such a contract), or any swap, on a group or index of securities (or any interest therein or based on the value thereof)—
(1) to employ any device, scheme, or artifice to defraud;
(2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or
(3) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.
(Sept. 21, 1922, ch. 369, §4b, as added June 15, 1936, ch. 545, §5, 49 Stat. 1493; amended Pub. L. 90–258, §5, Feb. 19, 1968, 82 Stat. 27; Pub. L. 93–463, title IV, §405, Oct. 23, 1974, 88 Stat. 1413; Pub. L. 99–641, title I, §101, Nov. 10, 1986, 100 Stat. 3557; Pub. L. 102–546, title IV, §402(3), Oct. 28, 1992, 106 Stat. 3624; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(5)], Dec. 21, 2000, 114 Stat. 2763, 2763A-407; Pub. L. 110–234, title XIII, §13102, May 22, 2008, 122 Stat. 1432; Pub. L. 110–246, §4(a), title XIII, §13102, June 18, 2008, 122 Stat. 1664, 2194; Pub. L. 111–203, title VII, §741(b)(1), July 21, 2010, 124 Stat. 1730.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2010—Subsec. (a)(2). Pub. L. 111–203, §741(b)(1)(A), substituted "or swap," for "or other agreement, contract, or transaction subject to paragraphs (1) and (2) of section 7a(g) of this title,".
Subsec. (b). Pub. L. 111–203, §741(b)(1)(B), substituted "or swap," for "or other agreement, contract or transaction subject to paragraphs (1) and (2) of section 7a(g) of this title,".
Subsec. (e). Pub. L. 111–203, §741(b)(1)(C), added subsec. (e).
2008—Pub. L. 110–246, §13102, inserted section catchline, added subsecs. (a) and (b), redesignated former subsecs. (b) and (c) as (c) and (d), respectively, and struck out former subsec. (a) which related to contracts designed to defraud or mislead and bucketing orders.
2000—Subsec. (a)(1). Pub. L. 106–554 substituted "registered entity" for "contract market" in two places.
1992—Pub. L. 102–546 designated first par. as subsec. (a), redesignated cls. (a) to (c) as subpars. (A) to (C), respectively, and subpars. (A) to (D) as cls. (i) to (iv), respectively, and designated second and third undesignated pars. as subsecs. (b) and (c), respectively.
1986—Pub. L. 99–641 struck out "on or subject to the rules of any contract market," after "to be made" in cl. (2) of first par. and added concluding paragraph that this section not apply to activity on board of trade, exchange, market, or clearinghouse located outside United States involving contract of sale of commodity for future delivery.
1974—Pub. L. 93–463 substituted "a commodity" for "cotton" in provisions following subpar. (D) and inserted requirement that execution of buying and selling orders for commodities held simultaneously by the same merchant or broker be carried out in accordance with such rules and regulations as the Commission may promulgate regarding the manner of the execution of such transactions.
1968—Pub. L. 90–258 relocated cl. (1) designation in first par. to follow "unlawful" rather than to precede "any contract of sale", provided in such cl. (1) for orders to make or making of contracts of sale "made, or to be made on or subject to the rules of any contract market, for or on behalf of any other person" and in cl. (2) "for any person, in or in connection with any order to make, or the making of," any contract of sale of any commodity for future delivery for or on behalf of any "other" person; and inserted "other" before "person" in subpar. (A) and in subpars. (B) and (C) where appearing for first time, respectively.
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–258 effective 120 days after Feb. 19, 1968, see section 28 of Pub. L. 90–258, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 13 of act June 15, 1936, set out as an Effective Date of 1936 Amendment note under section 1 of this title.
§6b–1. Enforcement authority
(a) Commodity Futures Trading Commission
Except as provided in subsections (b), (c), and (d), the Commission shall have exclusive authority to enforce the provisions of subtitle A of the Wall Street Transparency and Accountability Act of 2010 with respect to any person.
(b) Prudential regulators
The prudential regulators shall have exclusive authority to enforce the provisions of section 6s(e) of this title with respect to swap dealers or major swap participants for which they are the prudential regulator.
(c) Referrals
(1) Prudential regulators
If the prudential regulator for a swap dealer or major swap participant has cause to believe that the swap dealer or major swap participant, or any affiliate or division of the swap dealer or major swap participant, may have engaged in conduct that constitutes a violation of the nonprudential requirements of this chapter (including section 6s of this title or rules adopted by the Commission under that section), the prudential regulator may promptly notify the Commission in a written report that includes—
(A) a request that the Commission initiate an enforcement proceeding under this chapter; and
(B) an explanation of the facts and circumstances that led to the preparation of the written report.
(2) Commission
If the Commission has cause to believe that a swap dealer or major swap participant that has a prudential regulator may have engaged in conduct that constitutes a violation of any prudential requirement of section 6s of this title or rules adopted by the Commission under that section, the Commission may notify the prudential regulator of the conduct in a written report that includes—
(A) a request that the prudential regulator initiate an enforcement proceeding under this chapter or any other Federal law (including regulations); and
(B) an explanation of the concerns of the Commission, and a description of the facts and circumstances, that led to the preparation of the written report.
(d) Backstop enforcement authority
(1) Initiation of enforcement proceeding by prudential regulator
If the Commission does not initiate an enforcement proceeding before the end of the 90-day period beginning on the date on which the Commission receives a written report under subsection (c)(1), the prudential regulator may initiate an enforcement proceeding.
(2) Initiation of enforcement proceeding by Commission
If the prudential regulator does not initiate an enforcement proceeding before the end of the 90-day period beginning on the date on which the prudential regulator receives a written report under subsection (c)(2), the Commission may initiate an enforcement proceeding.
(Sept. 21, 1922, ch. 369, §4b–1, as added Pub. L. 111–203, title VII, §741(a), July 21, 2010, 124 Stat. 1729.)
Editorial Notes
References in Text
Subtitle A of the Wall Street Transparency and Accountability Act of 2010, referred to in subsec. (a), is subtitle A (§§711–754) of title VII of Pub. L. 111–203, July 21, 2010, 124 Stat. 1641, which enacted sections 1b, 6b–1, 6r to 6t, 7b–3, 24a, and 26 of this title and subchapter I (§8301 et seq.) of chapter 109 and section 78c–2 of Title 15, Commerce and Trade, amended sections 1a, 2, 6 to 6b, 6c, 6d, 6m, 6q, 6s, 7 to 7b, 8 to 9a, 12, 12a, 13, 13–1, 13a–1, 13b, 15, 16, 21, 24, 25, 27 to 27b, 27e, and 27f of this title, section 761 of Title 11, Bankruptcy, sections 4421 and 4422 of Title 12, Banks and Banking, and sections 78f, 78o, and 78s of Title 15, enacted provisions set out as notes under sections 1a, 2, 6a, 7a–1, 7a–3, and 9 of this title, and amended provisions set out as a note under section 78c of Title 15. For complete classification of subtitle A to the Code, see Tables.
Statutory Notes and Related Subsidiaries
Effective Date
Section effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as an Effective Date of 2010 Amendment note under section 1a of this title.
§6c. Prohibited transactions
(a) In general
(1) Prohibition
It shall be unlawful for any person to offer to enter into, enter into, or confirm the execution of a transaction described in paragraph (2) involving the purchase or sale of any commodity for future delivery (or any option on such a transaction or option on a commodity) or swap if the transaction is used or may be used to—
(A) hedge any transaction in interstate commerce in the commodity or the product or byproduct of the commodity;
(B) determine the price basis of any such transaction in interstate commerce in the commodity; or
(C) deliver any such commodity sold, shipped, or received in interstate commerce for the execution of the transaction.
(2) Transaction
A transaction referred to in paragraph (1) is a transaction that—
(A)(i) is, of the character of, or is commonly known to the trade as, a "wash sale" or "accommodation trade"; or
(ii) is a fictitious sale; or
(B) is used to cause any price to be reported, registered, or recorded that is not a true and bona fide price.
(3) Contract of sale
It shall be unlawful for any employee or agent of any department or agency of the Federal Government or any Member of Congress or employee of Congress (as such terms are defined under section 2 of the STOCK Act) or any judicial officer or judicial employee (as such terms are defined, respectively, under section 2 of the STOCK Act) who, by virtue of the employment or position of the Member, officer, employee or agent, acquires information that may affect or tend to affect the price of any commodity in interstate commerce, or for future delivery, or any swap, and which information has not been disseminated by the department or agency of the Federal Government holding or creating the information or by Congress or by the judiciary in a manner which makes it generally available to the trading public, or disclosed in a criminal, civil, or administrative hearing, or in a congressional, administrative, or Government Accountability Office report, hearing, audit, or investigation, to use the information in his personal capacity and for personal gain to enter into, or offer to enter into—
(A) a contract of sale of a commodity for future delivery (or option on such a contract);
(B) an option (other than an option executed or traded on a national securities exchange registered pursuant to section 78f(a) of title 15); or
(C) a swap.
(4) Nonpublic information
(A) Imparting of nonpublic information
It shall be unlawful for any employee or agent of any department or agency of the Federal Government or any Member of Congress or employee of Congress or any judicial officer or judicial employee who, by virtue of the employment or position of the Member, officer, employee or agent, acquires information that may affect or tend to affect the price of any commodity in interstate commerce, or for future delivery, or any swap, and which information has not been disseminated by the department or agency of the Federal Government holding or creating the information or by Congress or by the judiciary in a manner which makes it generally available to the trading public, or disclosed in a criminal, civil, or administrative hearing, or in a congressional, administrative, or Government Accountability Office report, hearing, audit, or investigation, to impart the information in his personal capacity and for personal gain with intent to assist another person, directly or indirectly, to use the information to enter into, or offer to enter into—
(i) a contract of sale of a commodity for future delivery (or option on such a contract);
(ii) an option (other than an option executed or traded on a national securities exchange registered pursuant to section 78f(a) of title 15); or
(iii) a swap.
(B) Knowing use
It shall be unlawful for any person who receives information imparted by any employee or agent of any department or agency of the Federal Government or any Member of Congress or employee of Congress or any judicial officer or judicial employee as described in subparagraph (A) to knowingly use such information to enter into, or offer to enter into—
(i) a contract of sale of a commodity for future delivery (or option on such a contract);
(ii) an option (other than an option executed or traded on a national securities exchange registered pursuant to section 78f(a) of title 15); or
(iii) a swap.
(C) Theft of nonpublic information
It shall be unlawful for any person to steal, convert, or misappropriate, by any means whatsoever, information held or created by any department or agency of the Federal Government or by Congress or by the judiciary that may affect or tend to affect the price of any commodity in interstate commerce, or for future delivery, or any swap, where such person knows, or acts in reckless disregard of the fact, that such information has not been disseminated by the department or agency of the Federal Government holding or creating the information or by Congress or by the judiciary in a manner which makes it generally available to the trading public, or disclosed in a criminal, civil, or administrative hearing, or in a congressional, administrative, or Government Accountability Office report, hearing, audit, or investigation, and to use such information, or to impart such information with the intent to assist another person, directly or indirectly, to use such information to enter into, or offer to enter into—
(i) a contract of sale of a commodity for future delivery (or option on such a contract);
(ii) an option (other than an option executed or traded on a national securities exchange registered pursuant to section 78f(a) of title 15); or
(iii) a swap, provided, however, that nothing in this subparagraph shall preclude a person that has provided information concerning, or generated by, the person, its operations or activities, to any employee or agent of any department or agency of the Federal Government, to Congress, any Member of Congress, any employee of Congress, any judicial officer, or any judicial employee, voluntarily or as required by law, from using such information to enter into, or offer to enter into, a contract of sale, option, or swap described in clauses 1 (i), (ii), or (iii).
(5) Disruptive practices
It shall be unlawful for any person to engage in any trading, practice, or conduct on or subject to the rules of a registered entity that—
(A) violates bids or offers;
(B) demonstrates intentional or reckless disregard for the orderly execution of transactions during the closing period; or
(C) is, is of the character of, or is commonly known to the trade as, "spoofing" (bidding or offering with the intent to cancel the bid or offer before execution).
(6) Rulemaking authority
The Commission may make and promulgate such rules and regulations as, in the judgment of the Commission, are reasonably necessary to prohibit the trading practices described in paragraph (5) and any other trading practice that is disruptive of fair and equitable trading.
(7) Use of swaps to defraud
It shall be unlawful for any person to enter into a swap knowing, or acting in reckless disregard of the fact, that its counterparty will use the swap as part of a device, scheme, or artifice to defraud any third party.
(b) Regulated option trading
No person shall offer to enter into, enter into or confirm the execution of, any transaction involving any commodity regulated under this chapter which is of the character of, or is commonly known to the trade as, an "option", "privilege", "indemnity", "bid", "offer", "put", "call", "advance guaranty", or "decline guaranty", contrary to any rule, regulation, or order of the Commission prohibiting any such transaction or allowing any such transaction under such terms and conditions as the Commission shall prescribe. Any such order, rule, or regulation may be made only after notice and opportunity for hearing, and the Commission may set different terms and conditions for different markets.
(c) Regulations for elimination of pilot status of commodity option transactions; terms and conditions of options trading
Not later than 90 days after November 10, 1986, the Commission shall issue regulations—
(1) to eliminate the pilot status of its program for commodity option transactions involving the trading of options on contract markets, including any numerical restrictions on the number of commodities or option contracts for which a contract market may be designated; and
(2) otherwise to continue to permit the trading of such commodity options under such terms and conditions that the Commission from time to time may prescribe.
(d) Dealer options exempt from subsections (b) and (c) prohibitions; requirements
Notwithstanding the provisions of subsection (c) of this section—
(1) any person domiciled in the United States who on May 1, 1978, was in the business of granting an option on a physical commodity, other than a commodity specifically set forth in section 2(a) of this title prior to October 23, 1974, and was in the business of buying, selling, producing, or otherwise using that commodity, may continue to grant or issue options on that commodity in accordance with Commission regulations in effect on August 17, 1978, until thirty days after the effective date of regulations issued by the Commission under clause (2) of this subsection: Provided, That if such person files an application for registration under the regulations issued under clause (2) of this subsection within thirty days after the effective date of such regulations, that person may continue to grant or issue options pending a final determination by the Commission on the application; and
(2) the Commission shall issue regulations that permit grantors and futures commission merchants to offer to enter into, enter into, or confirm the execution of, any commodity option transaction on a physical commodity subject to the provisions of subsection (b) of this section, other than a commodity specifically set forth in section 2(a) of this title prior to October 23, 1974, if—
(A) the grantor is a person domiciled in the United States who—
(i) is in the business of buying, selling, producing, or otherwise using the underlying commodity;
(ii) at all times has a net worth of at least $5,000,000 certified annually by an independent public accountant using generally accepted accounting principles;
(iii) notifies the Commission and every futures commission merchant offering the grantor's option if the grantor knows or has reason to believe that the grantor's net worth has fallen below $5,000,000;
(iv) segregates daily, exclusively for the benefit of purchasers, money, exempted securities (within the meaning of section 78c(a)(12) of title 15), commercial paper, bankers' acceptances, commercial bills, or unencumbered warehouse receipts, equal to an amount by which the value of each transaction exceeds the amount received or to be received by the grantor for such transaction;
(v) provides an identification number for each transaction; and
(vi) provides confirmation of all orders for such transactions executed, including the execution price and a transaction identification number;
(B) the futures commission merchant is a person who—
(i) has evidence that the grantor meets the requirements specified in subclause (A) of this clause;
(ii) treats and deals with all money, securities, or property received from its customers as payment of the purchase price in connection with such transactions, as belonging to such customers until the expiration of the term of the option, or, if the customer exercises the option, until all rights of the customer under the commodity option transaction have been fulfilled;
(iii) records each transaction in its customer's name by the transaction identification number provided by the grantor;
(iv) provides a disclosure statement to its customers, under regulations of the Commission, that discloses, among other things, all costs, including any markups or commissions involved in such transaction; and
(C) the grantor and futures commission merchant comply with any additional uniform and reasonable terms and conditions the Commission may prescribe, including registration with the Commission.
The Commission may permit persons not domiciled in the United States to grant options under this subsection, other than options on a commodity specifically set forth in section 2(a) of this title prior to October 23, 1974, under such additional rules, regulations, and orders as the Commission may adopt to provide protection to purchasers that are substantially the equivalent of those applicable to grantors domiciled in the United States. The Commission may terminate the right of any person to grant, offer, or sell options under this subsection only after a hearing, including a finding that the continuation of such right is contrary to the public interest: Provided, That pending the completion of such termination proceedings, the Commission may suspend the right to grant, offer, or sell options of any person whose activities in the Commission's judgment present a substantial risk to the public interest.
(e) Rules and regulations
The Commission may adopt rules and regulations, after public notice and opportunity for a hearing on the record, prohibiting the granting, issuance, or sale of options permitted under subsection (d) of this section if the Commission determines that such options are contrary to the public interest.
(f) Nonapplicability to foreign currency options
Nothing in this chapter shall be deemed to govern or in any way be applicable to any transaction in an option on foreign currency traded on a national securities exchange.
(g) Oral orders
The Commission shall adopt rules requiring that a contemporaneous written record be made, as practicable, of all orders for execution on the floor or subject to the rules of each contract market or derivatives transaction execution facility placed by a member of the contract market or derivatives transaction execution facility who is present on the floor at the time such order is placed.
(Sept. 21, 1922, ch. 369, §4c, as added June 15, 1936, ch. 545, §5, 49 Stat. 1494; amended Pub. L. 93–463, title I, §103(a), title IV, §402, Oct. 23, 1974, 88 Stat. 1392, 1412; Pub. L. 95–405, §3, Sept. 30, 1978, 92 Stat. 867; Pub. L. 97–444, title I, §102, title II, §206, Jan. 11, 1983, 96 Stat. 2296, 2301; Pub. L. 99–641, title I, §102, Nov. 10, 1986, 100 Stat. 3557; Pub. L. 102–546, title II, §203(a), title IV, §402(4), Oct. 28, 1992, 106 Stat. 3600, 3624; Pub. L. 106–554, §1(a)(5) [title I, §§109, 123(a)(6)], Dec. 21, 2000, 114 Stat. 2763, 2763A-383, 2763A-407; Pub. L. 111–203, title VII, §§741(b)(2), 746, 747, July 21, 2010, 124 Stat. 1731, 1737, 1739; Pub. L. 112–105, §5, Apr. 4, 2012, 126 Stat. 293.)
Editorial Notes
References in Text
Section 2 of the STOCK Act, referred to in subsec. (a)(3), is section 2 of Pub. L. 112–105, which is set out as a note under section 13101 of Title 5, Government Organization and Employees.
Amendments
2012—Subsec. (a)(3). Pub. L. 112–105, §5(1), inserted in introductory provisions "or any Member of Congress or employee of Congress (as such terms are defined under section 2 of the STOCK Act) or any judicial officer or judicial employee (as such terms are defined, respectively, under section 2 of the STOCK Act)" after "any department or agency of the Federal Government", "Member, officer," after "position of the", and "or by Congress or by the judiciary" after "creating the information".
Subsec. (a)(4)(A). Pub. L. 112–105, §5(2)(A), inserted in introductory provisions "or any Member of Congress or employee of Congress or any judicial officer or judicial employee" after "any department or agency of the Federal Government", "Member, officer," after "position of the", and "or by Congress or by the judiciary" after "creating the information".
Subsec. (a)(4)(B). Pub. L. 112–105, §5(2)(B), inserted "or any Member of Congress or employee of Congress or any judicial officer or judicial employee" after "Federal Government" in introductory provisions.
Subsec. (a)(4)(C). Pub. L. 112–105, §5(2)(C)(i), inserted "or by Congress or by the judiciary" in two places in introductory provisions.
Subsec. (a)(4)(C)(iii). Pub. L. 112–105, §5(2)(C)(ii), inserted "to Congress, any Member of Congress, any employee of Congress, any judicial officer, or any judicial employee," after "Federal Government,".
2010—Subsec. (a)(1). Pub. L. 111–203, §741(b)(2), inserted "or swap" before "if the transaction is used or may be used".
Subsec. (a)(3), (4). Pub. L. 111–203, §746, added pars. (3) and (4).
Subsec. (a)(5) to (7). Pub. L. 111–203, §747, added pars. (5) to (7).
2000—Pub. L. 106–554, §1(a)(5) [title I, §109], inserted section catchline.
Subsec. (a). Pub. L. 106–554, §1(a)(5) [title I, §109], added subsec. (a) and struck out former subsec. (a) which read as follows: "It shall be unlawful for any person to offer to enter into, enter into, or confirm the execution of, any transaction involving any commodity, which is or may be used for (1) hedging any transaction in interstate commerce in such commodity or the products or byproducts thereof, or (2) determining the price basis of any such transaction in interstate commerce in such commodity, or (3) delivering any such commodity sold, shipped, or received in interstate commerce for the fulfillment thereof—
"(A) if such transaction is, is of the character of, or is commonly known to the trade as, a 'wash sale,' 'cross trade,' or 'accommodation trade,' or is a fictitious sale; or
"(B) if such transaction is used to cause any price to be reported, registered, or recorded which is not a true and bona fide price.
Nothing in this section shall be construed to prevent the exchange of futures in connection with cash commodity transactions or of futures for cash commodities, or of transfer trades or office trades if made in accordance with board of trade rules applying to such transactions and such rules shall have been approved by the Commission."
Subsec. (g). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(6)], inserted "or derivatives transaction execution facility" after "contract market" in two places.
1992—Subsec. (d)(2). Pub. L. 102–546, §402(4), made technical amendments to references to section 78c(a)(12) of title 15 in subpar. (A)(iv) and to section 2(a) of this title in concluding provisions.
Subsec. (g). Pub. L. 102–546, §203(a), added subsec. (g).
1986—Subsec. (c). Pub. L. 99–641, amended subsec. (c) generally, substituting provisions relating to regulations to eliminate pilot status of program for commodity option transactions for provisions relating to commodity option transactions, pilot program and permanent authorization, conditions ending prohibition, and excepted persons.
1983—Subsec. (a)(B), (C). Pub. L. 97–444, §206(1), redesignated par. (C) as (B). Former par. (B), relating to transactions involving any commodity specifically set forth in section 2(a) of this title, prior to October 23, 1974, if such transactions were of the character of, or were commonly known to the trade as, an "option", "privilege", "indemnity", "bid", "offer", "put", "call", "advance guaranty", or "decline guaranty", was struck out.
Subsec. (b). Pub. L. 97–444, §206(2), in revising section generally, struck out references to any transaction subject to provisions of subsection (a) of this section and to any commodity not specifically set forth in section 2(a) of this title, prior to October 23, 1974, and struck out "within one year after the effective date of the Commodity Futures Trading Commission Act of 1974 unless the Commission determines and notifies the Senate Committee on Agriculture, Nutrition, and Forestry and the House Committee on Agriculture that it is unable to prescribe such terms and conditions within such period of time:" after "such terms and conditions as the Commission shall prescribe".
Subsec. (c). Pub. L. 97–444, §206(3), inserted "With respect to any commodity regulated under this chapter and specifically set forth in section 2(a) of this title prior to October 23, 1974, the Commission may, pursuant to the procedures set forth in this subsection, establish a pilot program for a period not to exceed three years to permit such commodity option transactions. The Commission may authorize commodity option transactions during the pilot program in as many commodities as will provide an adequate test of the trading of such option transactions. After completion of the pilot program, the Commission may authorize commodity option transactions without regard to the restrictions in the pilot program after the Commission transmits to the House Committee on Agriculture and the Senate Committee on Agriculture, Nutrition, and Forestry the documentation required under clause (1) of the first sentence of this subsection and the expiration of thirty calendar days of continuous session of Congress after the date of such transmittal."
Subsec. (d)(1). Pub. L. 97–444, §206(4)(A), inserted ", other than a commodity specifically set forth in section 2(a) of this title prior to October 23, 1974," after "physical commodity".
Subsec. (d)(2). Pub. L. 97–444, §206(4)(B), inserted ", other than a commodity specifically set forth in section 2(a) of this title prior to October 23, 1974," after "subsection (b) of this section" in provisions preceding subpar. (A).
Pub. L. 97–444, §206(4)(C), inserted ", other than options on a commodity specifically set forth in section 2(a) of this title prior to October 23, 1974," after "The Commission may permit persons not domiciled in the United States to grant options under this subsection" in provisions following par. (2).
Subsec. (f). Pub. L. 97–444, §102, added subsec. (f).
1978—Subsec. (a). Pub. L. 95–405, §3(1), in provisions following par. (C) substituted "have been approved" for "not have been disapproved".
Subsec. (b). Pub. L. 95–405, §3(2), substituted "Senate Committee on Agriculture, Nutrition, and Forestry" for "Senate Committee on Agriculture and Forestry".
Subsecs. (c) to (e). Pub. L. 95–405, §3(3), added subsecs. (c) to (e).
1974—Subsec. (a). Pub. L. 93–463, §§103(a), 402(a), (b), (d), designated existing provisions as subsec. (a), in par. (B) of subsec. (a) as so designated inserted "if such transaction involves any commodity specifically set forth in section 2(a) of this title, prior to the enactment of the Commodity Futures Trading Commission Act of 1974, and" and "option", and in provisions following par. (C), struck out provisions prohibiting a construction of this section or section 6b of this title which would impair any State law applicable to any transaction enumerated or described in this section or section 6b of this title and substituted "Commission" for "Secretary of Agriculture".
Subsec. (b). Pub. L. 93–463, §402(c), added subsec. (b).
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date of 1992 Amendment
Pub. L. 102–546, title II, §203(b), Oct. 28, 1992, 106 Stat. 3600, provided that: "The Commission shall adopt the rules required by the amendment made under subsection (a) [amending this section] within two hundred and seventy days after the date of enactment of this Act [Oct. 28, 1992]."
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–405 effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as a note under section 2 of this title.
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 13 of act June 15, 1936, set out as an Effective Date of 1936 Amendment note under section 1 of this title.
1 So in original. Probably should be "clause".
§6d. Dealing by unregistered futures commission merchants or introducing brokers prohibited; duties in handling customer receipts; conflict-of-interest systems and procedures; Chief Compliance Officer; rules to avoid duplicative regulations; swap requirements; portfolio margining accounts
(a) Futures commission merchant registration requirements; duties of merchants in handling customer receipts
It shall be unlawful for any person to be a futures commission merchant unless—
(1) such person shall have registered, under this chapter, with the Commission as such futures commission merchant and such registration shall not have expired nor been suspended nor revoked; and
(2) such person shall, whether a member or nonmember of a contract market or derivatives transaction execution facility, treat and deal with all money, securities, and property received by such person to margin, guarantee, or secure the trades or contracts of any customer of such person, or accruing to such customer as the result of such trades or contracts, as belonging to such customer. Such money, securities, and property shall be separately accounted for and shall not be commingled with the funds of such commission merchant or be used to margin or guarantee the trades or contracts, or to secure or extend the credit, of any customer or person other than the one for whom the same are held: Provided, however, That such money, securities, and property of the customers of such futures commission merchant may, for convenience, be commingled and deposited in the same account or accounts with any bank or trust company or with the clearing house organization of such contract market or derivatives transaction execution facility, and that such share thereof as in the normal course of business shall be necessary to margin, guarantee, secure, transfer, adjust, or settle the contracts or trades of such customers, or resulting market positions, with the clearinghouse organization of such contract market or derivatives transaction execution facility or with any member of such contract market or derivatives transaction execution facility, may be withdrawn and applied to such purposes, including the payment of commissions, brokerage, interest, taxes, storage, and other charges, lawfully accruing in connection with such contracts and trades: Provided further, That in accordance with such terms and conditions as the Commission may prescribe by rule, regulation, or order, such money, securities, and property of the customers of such futures commission merchant may be commingled and deposited as provided in this section with any other money, securities, and property received by such futures commission merchant and required by the Commission to be separately accounted for and treated and dealt with as belonging to the customers of such futures commission merchant: Provided further, That such money may be invested in obligations of the United States, in general obligations of any State or of any political subdivision thereof, and in obligations fully guaranteed as to principal and interest by the United States, such investments to be made in accordance with such rules and regulations and subject to such conditions as the Commission may prescribe.
(b) Duties of clearing agencies, depositories, and others in handling customer receipts
It shall be unlawful for any person, including but not limited to any clearing agency of a contract market or derivatives transaction execution facility and any depository, that has received any money, securities, or property for deposit in a separate account as provided in paragraph (2) of this section,1 to hold, dispose of, or use any such money, securities, or property as belonging to the depositing futures commission merchant or any person other than the customers of such futures commission merchant.
(c) Conflicts of interest
The Commission shall require that futures commission merchants and introducing brokers implement conflict-of-interest systems and procedures that—
(1) establish structural and institutional safeguards to ensure that the activities of any person within the firm relating to research or analysis of the price or market for any commodity are separated by appropriate informational partitions within the firm from the review, pressure, or oversight of persons whose involvement in trading or clearing activities might potentially bias the judgment or supervision of the persons; and
(2) address such other issues as the Commission determines to be appropriate.
(d) Designation of Chief Compliance Officer
Each futures commission merchant shall designate an individual to serve as its Chief Compliance Officer and perform such duties and responsibilities as shall be set forth in regulations to be adopted by the Commission or rules to be adopted by a futures association registered under section 21 of this title.
(e) Rules to avoid duplicative regulation of dual registrants
Consistent with this chapter, the Commission, in consultation with the Securities and Exchange Commission, shall issue such rules, regulations, or orders as are necessary to avoid duplicative or conflicting regulations applicable to any futures commission merchant registered with the Commission pursuant to section 6f(a) of this title (except paragraph (2) thereof), that is also registered with the Securities and Exchange Commission pursuant to section 78o(b) of title 15 (except paragraph (11) thereof), involving the application of—
(1) section 78h, section 78o(c)(3), and section 78q of title 15 and the rules and regulations thereunder related to the treatment of customer funds, securities, or property, maintenance of books and records, financial reporting or other financial responsibility rules (as defined in section 78c(a)(40) of title 15), involving security futures products; and
(2) similar provisions of this chapter and the rules and regulations thereunder involving security futures products.
(f) Swaps
(1) Registration requirement
It shall be unlawful for any person to accept any money, securities, or property (or to extend any credit in lieu of money, securities, or property) from, for, or on behalf of a swaps customer to margin, guarantee, or secure a swap cleared by or through a derivatives clearing organization (including money, securities, or property accruing to the customer as the result of such a swap), unless the person shall have registered under this chapter with the Commission as a futures commission merchant, and the registration shall not have expired nor been suspended nor revoked.
(2) Cleared swaps
(A) Segregation required
A futures commission merchant shall treat and deal with all money, securities, and property of any swaps customer received to margin, guarantee, or secure a swap cleared by or though a derivatives clearing organization (including money, securities, or property accruing to the swaps customer as the result of such a swap) as belonging to the swaps customer.
(B) Commingling prohibited
Money, securities, and property of a swaps customer described in subparagraph (A) shall be separately accounted for and shall not be commingled with the funds of the futures commission merchant or be used to margin, secure, or guarantee any trades or contracts of any swaps customer or person other than the person for whom the same are held.
(3) Exceptions
(A) Use of funds
(i) In general
Notwithstanding paragraph (2), money, securities, and property of swap customers of a futures commission merchant described in paragraph (2) may, for convenience, be commingled and deposited in the same account or accounts with any bank or trust company or with a derivatives clearing organization.
(ii) Withdrawal
Notwithstanding paragraph (2), such share of the money, securities, and property described in clause (i) as in the normal course of business shall be necessary to margin, guarantee, secure, transfer, adjust, or settle a cleared swap with a derivatives clearing organization, or with any member of the derivatives clearing organization, may be withdrawn and applied to such purposes, including the payment of commissions, brokerage, interest, taxes, storage, and other charges, lawfully accruing in connection with the cleared swap.
(B) Commission action
Notwithstanding paragraph (2), in accordance with such terms and conditions as the Commission may prescribe by rule, regulation, or order, any money, securities, or property of the swaps customers of a futures commission merchant described in paragraph (2) may be commingled and deposited in customer accounts with any other money, securities, or property received by the futures commission merchant and required by the Commission to be separately accounted for and treated and dealt with as belonging to the swaps customer of the futures commission merchant.
(4) Permitted investments
Money described in paragraph (2) may be invested in obligations of the United States, in general obligations of any State or of any political subdivision of a State, and in obligations fully guaranteed as to principal and interest by the United States, or in any other investment that the Commission may by rule or regulation prescribe, and such investments shall be made in accordance with such rules and regulations and subject to such conditions as the Commission may prescribe.
(5) Commodity contract
A swap cleared by or through a derivatives clearing organization shall be considered to be a commodity contract as such term is defined in section 761 of title 11, with regard to all money, securities, and property of any swaps customer received by a futures commission merchant or a derivatives clearing organization to margin, guarantee, or secure the swap (including money, securities, or property accruing to the customer as the result of the swap).
(6) Prohibition
It shall be unlawful for any person, including any derivatives clearing organization and any depository institution, that has received any money, securities, or property for deposit in a separate account or accounts as provided in paragraph (2) to hold, dispose of, or use any such money, securities, or property as belonging to the depositing futures commission merchant or any person other than the swaps customer of the futures commission merchant.
(g) Introducing broker registration requirements
It shall be unlawful for any person to be an introducing broker unless such person shall have registered under this chapter with the Commission as an introducing broker and such registration shall not have expired nor been suspended nor revoked.
(h) Contracts held in portfolio margining accounts
Notwithstanding subsection (a)(2) or the rules and regulations thereunder, and pursuant to an exemption granted by the Commission under section 6(c) of this title or pursuant to a rule or regulation, a futures commission merchant that is registered pursuant to section 6f(a)(1) of this title and also registered as a broker or dealer pursuant to section 78(o)(b)(1) of title 15 may, pursuant to a portfolio margining program approved by the Securities and Exchange Commission pursuant to section 78s(b) of title 15, hold in a portfolio margining account carried as a securities account subject to section 78(o)(c)(3) of title 15 and the rules and regulations thereunder, a contract for the purchase or sale of a commodity for future delivery or an option on such a contract, and any money, securities or other property received from a customer to margin, guarantee or secure such a contract, or accruing to a customer as the result of such a contract. The Commission shall consult with the Securities and Exchange Commission to adopt rules to ensure that such transactions and accounts are subject to comparable requirements to the extent practical for similar products.
(Sept. 21, 1922, ch. 369, §4d, as added June 15, 1936, ch. 545, §5, 49 Stat. 1494; amended Pub. L. 90–258, §6, Feb. 19, 1968, 82 Stat. 27; Pub. L. 93–463, title I, §103(a), Oct. 23, 1974, 88 Stat. 1392; Pub. L. 95–405, §4, Sept. 30, 1978, 92 Stat. 869; Pub. L. 97–444, title II, §207, Jan. 11, 1983, 96 Stat. 2302; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(6), title II, §251(f)], Dec. 21, 2000, 114 Stat. 2763, 2763A-407, 2763A-443; Pub. L. 111–203, title VII, §§713(b), 724(a), 732, 749(a), July 21, 2010, 124 Stat. 1646, 1682, 1712, 1746.)
Editorial Notes
Amendments
2010—Subsec. (a). Pub. L. 111–203, §749(a)(1)(A), in introductory provisions, substituted "be a" for "engage as" and struck out "or introducing broker in soliciting orders or accepting orders for the purchase or sale of any commodity for future delivery, or involving any contracts of sale of any commodity for future delivery, on or subject to the rules of any contract market or derivatives transaction execution facility" after "merchant".
Subsec. (a)(1). Pub. L. 111–203, §749(a)(1)(B), struck out "or introducing broker" after "merchant".
Subsec. (a)(2). Pub. L. 111–203, §749(a)(1)(C), struck out "if a futures commission merchant," after "such person shall,".
Subsecs. (c) to (e). Pub. L. 111–203, §732, added subsecs. (c) and (d) and redesignated former subsec. (c) as (e).
Subsec. (f). Pub. L. 111–203, §724(a), which directed amendment of section by adding subsec. (f) at end, was executed by making the addition after subsec. (e) to reflect the probable intent of Congress and the addition of subsec. (h) by section 713(b) of Pub. L. 111–203.
Subsec. (g). Pub. L. 111–203, §749(a)(2), which directed amendment of section by adding subsec. (g) at end, was executed by making the addition after subsec. (f) to reflect the probable intent of Congress and the addition of subsec. (h) by section 713(b) of Pub. L. 111–203.
Subsec. (h). Pub. L. 111–203, §713(b), added subsec. (h).
2000—Pub. L. 106–554, §1(a)(5) [title II, §251(f)], designated first undesignated par. as subsec. (a), designated second undesignated par. as subsec. (b), and added subsec. (c).
Pub. L. 106–554, §1(a)(5) [title I, §123(a)(6)], inserted "or derivatives transaction execution facility" after "contract market" wherever appearing.
1983—Pub. L. 97–444, §207(1), inserted reference to introducing brokers in provisions preceding par. (1).
Par. (1). Pub. L. 97–444, §207(2), inserted "or introducing broker" after "futures commission merchant".
Par. (2). Pub. L. 97–444, §207(3), inserted "if a futures commission merchant," after "such person shall,".
1978—Pub. L. 95–405 in par. (2) inserted provisions authorizing Commission to prescribe terms and conditions under which funds and property commingled and deposited as permitted by par. (2) may be commingled and deposited with other funds and property received by a futures commission merchant and required by Commission to be separately accounted for and treated as belonging to its customers.
1974—Pub. L. 93–463 substituted "Commission" for "Secretary of Agriculture" in pars. (1) and (2).
1968—Pub. L. 90–258 struck out from second proviso of first par. authorization for investment of customer funds in investment securities of the kind national banking associations may buy or in loans secured by negotiable warehouse receipts conveying or securing title to readily marketable commodities to the extent of the current loan value of such receipts and added second par., making it unlawful for any person, including a clearing agency of a contract market or any depository, to treat customer funds as belonging to any person other than the customer, respectively.
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective 120 days after Jan. 11, 1983, or such earlier date as the Commission shall prescribe by regulation, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–405 effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as a note under section 2 of this title.
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–258 effective 120 days after Feb. 19, 1968, see section 28 of Pub. L. 90–258, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 13 of act June 15, 1936, set out as an Effective Date of 1936 Amendment note under section 1 of this title.
1 So in original. Probably means subsection (a)(2) of this section.
§6e. Dealings by unregistered floor trader or broker prohibited
It shall be unlawful for any person to act as floor trader in executing purchases and sales, or as floor broker in executing any orders for the purchase or sale, of any commodity for future delivery, or involving any contracts of sale of any commodity for future delivery, on or subject to the rules of any contract market or derivatives transaction execution facility unless such person shall have registered, under this chapter, with the Commission as such floor trader or floor broker and such registration shall not have expired nor been suspended nor revoked.
(Sept. 21, 1922, ch. 369, §4e, as added June 15, 1936, ch. 545, §5, 49 Stat. 1495; amended Pub. L. 93–463, title I, §103(a), Oct. 23, 1974, 88 Stat. 1392; Pub. L. 102–546, title II, §207(a), Oct. 28, 1992, 106 Stat. 3604; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(6)], Dec. 21, 2000, 114 Stat. 2763, 2763A-407.)
Editorial Notes
Amendments
2000—Pub. L. 106–554 inserted "or derivatives transaction execution facility" after "contract market".
1992—Pub. L. 102–546 amended section generally. Prior to amendment, section read as follows: "It shall be unlawful for any person to act as floor broker in executing any orders for the purchase or sale of any commodity for future delivery, or involving any contracts of sale of any commodity for future delivery, on or subject to the rules of any contract market unless such person shall have registered, under this chapter, with the Commission as such floor broker and such registration shall not have expired nor been suspended nor revoked."
1974—Pub. L. 93–463 substituted "Commission" for "Secretary of Agriculture".
Statutory Notes and Related Subsidiaries
Effective Date of 1992 Amendment
Pub. L. 102–546, title II, §207(c), Oct. 28, 1992, 106 Stat. 3604, provided that: "The amendments made by this section [amending this section and sections 6f, 6g, 12a, and 13a–2 of this title] shall become effective one hundred and eighty days after the date of enactment of this Act [Oct. 28, 1992], and the Commodity Futures Trading Commission shall issue any regulations necessary to implement the amendments made by this section no later than one hundred and eighty days after the date of enactment of this Act."
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 13 of act June 15, 1936, set out as an Effective Date of 1936 Amendment note under section 1 of this title.
§6f. Registration and financial requirements; risk assessment
(a) Registration of futures commission merchants, introducing brokers, and floor brokers and traders
(1) Any person desiring to register as a futures commission merchant, introducing broker, floor broker, or floor trader hereunder shall be registered upon application to the Commission. The application shall be made in such form and manner as prescribed by the Commission, giving such information and facts as the Commission may deem necessary concerning the business in which the applicant is or will be engaged, including in the case of an application of a futures commission merchant or an introducing broker, the names and addresses of the managers of all branch offices, and the names of such officers and partners, if a partnership, and of such officers, directors, and stockholders, if a corporation, as the Commission may direct. Such person, when registered hereunder, shall likewise continue to report and furnish to the Commission the above-mentioned information and such other information pertaining to such person's business as the Commission may require. Each registration shall expire on December 31 of the year for which issued or at such other time, not less than one year from the date of issuance, as the Commission may by rule, regulation, or order prescribe, and shall be renewed upon application therefor unless the registration has been suspended (and the period of such suspension has not expired) or revoked pursuant to the provisions of this chapter.
(2) Notwithstanding paragraph (1), and except as provided in paragraph (3), any broker or dealer that is registered with the Securities and Exchange Commission shall be registered as a futures commission merchant or introducing broker, as applicable, if—
(A) the broker or dealer limits its solicitation of orders, acceptance of orders, or execution of orders, or placing of orders on behalf of others involving any contracts of sale of any commodity for future delivery, on or subject to the rules of any contract market or registered derivatives transaction execution facility to security futures products;
(B) the broker or dealer files written notice with the Commission in such form as the Commission, by rule, may prescribe containing such information as the Commission, by rule, may prescribe as necessary or appropriate in the public interest or for the protection of investors;
(C) the registration of the broker or dealer is not suspended pursuant to an order of the Securities and Exchange Commission; and
(D) the broker or dealer is a member of a national securities association registered pursuant to section 78o–3(a) of title 15.
The registration shall be effective contemporaneously with the submission of notice, in written or electronic form, to the Commission.
(3) A floor broker or floor trader shall be exempt from the registration requirements of section 6e of this title and paragraph (1) of this subsection if—
(A) the floor broker or floor trader is a broker or dealer registered with the Securities and Exchange Commission;
(B) the floor broker or floor trader limits its solicitation of orders, acceptance of orders, or execution of orders, or placing of orders on behalf of others involving any contracts of sale of any commodity for future delivery, on or subject to the rules of any contract market to security futures products; and
(C) the registration of the floor broker or floor trader is not suspended pursuant to an order of the Securities and Exchange Commission.
(4)(A) A broker or dealer that is registered as a futures commission merchant or introducing broker pursuant to paragraph (2), or that is a floor broker or floor trader exempt from registration pursuant to paragraph (3), shall be exempt from the following provisions of this chapter and the rules thereunder:
(i) Subsections (b), (d), (e), and (g) of section 6c of this title.
(ii) Sections 6d, 6e, and 6h of this title.
(iii) Subsections (b) and (c) of this section.
(iv) Section 6j of this title.
(v) Section 6k(1) of this title.
(vi) Section 6p of this title.
(vii) Section 13a–2 of this title.
(viii) Subsections (d) and (g) of section 12 of this title.
(ix) Section 20 of this title.
(B)(i) Except as provided in clause (ii) of this subparagraph, but notwithstanding any other provision of this chapter, the Commission, by rule, regulation, or order, may conditionally or unconditionally exempt any broker or dealer subject to the registration requirement of paragraph (2), or any broker or dealer exempt from registration pursuant to paragraph (3), from any provision of this chapter or of any rule or regulation thereunder, to the extent the exemption is necessary or appropriate in the public interest and is consistent with the protection of investors.
(ii) The Commission shall, by rule or regulation, determine the procedures under which an exemptive order under this section shall be granted and may, in its sole discretion, decline to entertain any application for an order of exemption under this section.
(C)(i) A broker or dealer that is registered as a futures commission merchant or introducing broker pursuant to paragraph (2) or an associated person thereof, or that is a floor broker or floor trader exempt from registration pursuant to paragraph (3), shall not be required to become a member of any futures association registered under section 21 of this title.
(ii) No futures association registered under section 21 of this title shall limit its members from carrying an account, accepting an order, or transacting business with a broker or dealer that is registered as a futures commission merchant or introducing broker pursuant to paragraph (2) or an associated person thereof, or that is a floor broker or floor trader exempt from registration pursuant to paragraph (3).
(b) Financial requirements for futures commission merchants and introducing brokers
Notwithstanding any other provisions of this chapter, no person desiring to register as futures commission merchant or as introducing broker shall be so registered unless he meets such minimum financial requirements as the Commission may by regulation prescribe as necessary to insure his meeting his obligation as a registrant, and each person so registered shall at all times continue to meet such prescribed minimum financial requirements: Provided, That such minimum financial requirements will be considered met if the applicant for registration or registrant is a member of a contract market or derivatives transaction execution facility and conforms to minimum financial standards and related reporting requirements set by such contract market or derivatives transaction execution facility in its bylaws, rules, regulations, or resolutions and approved by the Commission as adequate to effectuate the purposes of this subsection.
(c) Risk assessment for holding company systems
(1) As used in this subsection:
(i) The term "affiliated person" means any person directly or indirectly controlling, controlled by, or under common control with a futures commission merchant, as the Commission, by rule or regulation, may determine will effectuate the purposes of this subsection.
(ii) The term "Federal banking agency" shall have the same meaning as the term "appropriate Federal banking agency" in section 1813(q) of title 12.
(2)(A) Each registered futures commission merchant shall obtain such information and make and keep such records as the Commission, by rule or regulation, prescribes concerning the registered futures commission merchant's policies, procedures, or systems for monitoring and controlling financial and operational risks to it resulting from the activities of any of its affiliated persons, other than a natural person.
(B) The records required under subparagraph (A) shall describe, in the aggregate, each of the futures and other financial activities conducted by, and the customary sources of capital and funding of, those of its affiliated persons whose business activities are reasonably likely to have a material impact on the financial or operational condition of the futures commission merchant, including its adjusted net capital, its liquidity, or its ability to conduct or finance its operations.
(C) The Commission, by rule or regulation, may require summary reports of such information to be filed by the futures commission merchant with the Commission no more frequently than quarterly.
(3)(A),1 If, as a result of adverse market conditions or based on reports provided to the Commission pursuant to paragraph (2) or other available information, the Commission reasonably concludes that the Commission has concerns regarding the financial or operational condition of any registered futures commission merchant, the Commission may require the futures commission merchant to make reports concerning the futures and other financial activities of any of such person's affiliated persons, other than a natural person, whose business activities are reasonably likely to have a material impact on the financial or operational condition of the futures commission merchant.
(B) The Commission, in requiring reports pursuant to this paragraph, shall specify the information required, the period for which it is required, the time and date on which the information must be furnished, and whether the information is to be furnished directly to the Commission or to a contract market or derivatives transaction execution facility or other self-regulatory organization with primary responsibility for examining the registered futures commission merchant's financial and operational condition.
(4)(A) in 2 developing and implementing reporting requirements pursuant to paragraph (2) with respect to affiliated persons subject to examination by or reporting requirements of a Federal banking agency, the Commission shall consult with and consider the views of each such Federal banking agency. If a Federal banking agency comments in writing on a proposed rule of the Commission under this subsection that has been published for comment, the Commission shall respond in writing to the written comment before adopting the proposed rule. The Commission shall, at the request of the Federal banking agency, publish the comment and response in the Federal Register at the time of publishing the adopted rule.
(B)(i) Except as provided in clause (ii), a registered futures commission merchant shall be considered to have complied with a recordkeeping or reporting requirement adopted pursuant to paragraph (2) concerning an affiliated person that is subject to examination by, or reporting requirements of, a Federal banking agency if the futures commission merchant utilizes for the recordkeeping or reporting requirement copies of reports filed by the affiliated person with the Federal banking agency pursuant to section 161 of title 12, section 9 of the Federal Reserve Act (12 U.S.C. 321 et seq.), section 1817(a) of title 12, section 1467a(b) of title 12, or section 1844 of title 12.
(ii) The Commission may, by rule adopted pursuant to paragraph (2), require any futures commission merchant filing the reports with the Commission to obtain, maintain, or report supplemental information if the Commission makes an explicit finding that the supplemental information is necessary to inform the Commission regarding potential risks to the futures commission merchant. Prior to requiring any such supplemental information, the Commission shall first request the Federal banking agency to expand its reporting requirements to include the information.
(5) Prior to making a request pursuant to paragraph (3) for information with respect to an affiliated person that is subject to examination by or reporting requirements of a Federal banking agency, the Commission shall—
(A) notify the agency of the information required with respect to the affiliated person; and
(B) consult with the agency to determine whether the information required is available from the agency and for other purposes, unless the Commission determines that any delay resulting from the consultation would be inconsistent with ensuring the financial and operational condition of the futures commission merchant or the stability or integrity of the futures markets.
(6) Nothing in this subsection shall be construed to permit the Commission to require any futures commission merchant to obtain, maintain, or furnish any examination report of any Federal banking agency or any supervisory recommendations or analysis contained in the report.
(7) No information provided to or obtained by the Commission from any Federal banking agency pursuant to a request under paragraph (5) regarding any affiliated person that is subject to examination by or reporting requirements of a Federal banking agency may be disclosed to any other person (other than as provided in section 12 of this title or section 12a(6) of this title), without the prior written approval of the Federal banking agency.
(8) The Commission shall notify a Federal banking agency of any concerns of the Commission regarding significant financial or operational risks resulting from the activities of any futures commission merchant to any affiliated person thereof that is subject to examination by or reporting requirements of the Federal banking agency.
(9) The Commission, by rule, regulation, or order, may exempt any person or class of persons under such terms and conditions and for such periods as the Commission shall provide in the rule, regulation, or order, from this subsection and the rules and regulations issued under this subsection. In granting the exemption, the Commission shall consider, among other factors—
(A) whether information of the type required under this subsection is available from a supervisory agency (as defined in section 3401(7) of title 12), a State insurance commission or similar State agency, the Securities and Exchange Commission, or a similar foreign regulator;
(B) the primary business of any affiliated person;
(C) the nature and extent of domestic or foreign regulation of the affiliated person's activities;
(D) the nature and extent of the registered futures commission merchant's commodity futures and options activities; and
(E) with respect to the registered futures commission merchant and its affiliated persons, on a consolidated basis, the amount and proportion of assets devoted to, and revenues derived from activities in the United States futures markets.
(10) Information required to be provided pursuant to this subsection shall be subject to section 12 of this title. Except as specifically provided in section 12 of this title and notwithstanding any other provision of law, the Commission shall not be compelled to disclose any information required to be reported under this subsection, or any information supplied to the Commission by any domestic or foreign regulatory agency that relates to the financial or operational condition of any affiliated person of a registered futures commission merchant.
(11) Nothing in paragraphs (1) through (10) shall be construed to supersede or to limit in any way the authority or powers of the Commission pursuant to any other provision of this chapter or regulations issued under this chapter.
(Sept. 21, 1922, ch. 369, §4f, as added June 15, 1936, ch. 545, §5, 49 Stat. 1495; amended Pub. L. 90–258, §7, Feb. 19, 1968, 82 Stat. 28; Pub. L. 93–463, title I, §103(a), Oct. 23, 1974, 88 Stat. 1392; Pub. L. 95–405, §5, Sept. 30, 1978, 92 Stat. 869; Pub. L. 97–444, title II, §208, Jan. 11, 1983, 96 Stat. 2302; Pub. L. 102–546, title II, §§207(b)(1), 229, Oct. 28, 1992, 106 Stat. 3604, 3619; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(6), title II, §252(b), (c)], Dec. 21, 2000, 114 Stat. 2763, 2763A-407, 2763A-447; Pub. L. 110–234, title XIII, §13105(b), May 22, 2008, 122 Stat. 1434; Pub. L. 110–246, §4(a), title XIII, §13105(b), June 18, 2008, 122 Stat. 1664, 2196.)
Editorial Notes
References in Text
Section 9 of the Federal Reserve Act, referred to in subsec. (c)(4)(B)(i), is section 9 of act Dec. 23, 1913, ch. 6, 38 Stat. 251, which is classified generally to subchapter VIII (§321 et seq.) of chapter 3 of Title 12, Banks and Banking.
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2008—Subsec. (c)(4)(B)(i). Pub. L. 110–246, §13105(b), substituted "complied" for "compiled".
2000—Subsec. (a). Pub. L. 106–554, §1(a)(5) [title II, §252(b)], designated existing provisions as par. (1) and added pars. (2) and (3).
Subsec. (a)(4). Pub. L. 106–554, §1(a)(5) [title II, §252(c)], added par. (4).
Subsecs. (b), (c)(3)(B). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(6)], inserted "or derivatives transaction execution facility" after "contract market" wherever appearing.
1992—Subsec. (a). Pub. L. 102–546, §§207(b)(1), 229(1), redesignated par. (1) as subsec. (a) and substituted "floor broker, or floor trader" for "or floor broker".
Subsec. (b). Pub. L. 102–546, §229(1), (2), redesignated par. (2) as subsec. (b) and substituted "this subsection" for "this paragraph (2)".
Subsec. (c). Pub. L. 102–546, §229(3), added subsec. (c).
1983—Par. (1). Pub. L. 97–444, §208(1), made grammatical changes, made registration provisions applicable to introducing brokers, and substituted "revoked pursuant to the provisions of this chapter" for "revoked after notice and hearing as prescribed in this chapter".
Par. (2). Pub. L. 97–444, §208(2), made financial requirements applicable to introducing brokers.
1978—Par. (1). Pub. L. 95–405 substituted "Each registration shall expire on December 31 of the year for which issued or at such other time, not less than one year from the date of issuance, as the Commission may by rule, regulation, or order prescribe" for "All registrations shall expire on the 31st day of December of the year for which issued".
1974—Pub. L. 93–463 substituted "Commission" for "Secretary of Agriculture".
1968—Par. (1). Pub. L. 90–258, §7(a), substituted "this chapter" for "section 6g of this title".
Par. (2). Pub. L. 90–258, §7(b), substituted provisions that prescribed financial requirements for registration as futures commission merchant be met and continued at all times and that such requirements will be considered met by membership in a contract market and compliance with its minimum financial standards and related reporting requirements for former provisions for display of futures commission merchants' registration certificates.
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Effective Date of 1992 Amendment
Amendment by section 207(b)(1) of Pub. L. 102–546 effective 180 days after Oct. 28, 1992, with Commodity Futures Trading Commission to issue any regulations necessary to implement such amendment no later than 180 days after Oct. 28, 1992, see section 207(c) of Pub. L. 102–546, set out as a note under section 6e of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–405 effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as a note under section 2 of this title.
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–258 effective 120 days after Feb. 19, 1968, see section 28 of Pub. L. 90–258, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 13 of act June 15, 1936, set out as an Effective Date of 1936 Amendment note under section 1 of this title.
1 So in original. The comma probably should not appear.
2 So in original. Probably should be capitalized.
§6g. Reporting and recordkeeping
(a) In general
Every person registered hereunder as futures commission merchant, introducing broker, floor broker, or floor trader shall make such reports as are required by the Commission regarding the transactions and positions of such person, and the transactions and positions of the customer thereof, in commodities for future delivery on any board of trade in the United States or elsewhere, and in any significant price discovery contract traded or executed on an electronic trading facility or any agreement, contract, or transaction that is treated by a derivatives clearing organization, whether registered or not registered, as fungible with a significant price discovery contract; shall keep books and records pertaining to such transactions and positions in such form and manner and for such period as may be required by the Commission; and shall keep such books and records open to inspection by any representative of the Commission or the United States Department of Justice.
(b) Daily trading records: registered entities
Every registered entity shall maintain daily trading records. The daily trading records shall include such information as the Commission shall prescribe by rule.
(c) Daily trading records: floor brokers, introducing brokers, and futures commission merchants
Floor brokers, introducing brokers, and futures commission merchants shall maintain daily trading records for each customer in such manner and form as to be identifiable with the trades referred to in subsection (b).
(d) Daily trading records: form and reports
Daily trading records shall be maintained in a form suitable to the Commission for such period as may be required by the Commission. Reports shall be made from the records maintained at such times and at such places and in such form as the Commission may prescribe by rule, order, or regulation in order to protect the public interest and the interest of persons trading in commodity futures.
(e) Disclosure of information
Before the beginning of trading each day, the exchange shall, insofar as is practicable and under terms and conditions specified by the Commission, make public the volume of trading on each type of contract for the previous day and such other information as the Commission deems necessary in the public interest and prescribes by rule, order, or regulation.
(f) Authority of Commission to make separate determinations unimpaired
Nothing contained in this section shall be construed to prohibit the Commission from making separate determinations for different registered entities when such determinations are warranted in the judgment of the Commission.
(Sept. 21, 1922, ch. 369, §4g, as added June 15, 1936, ch. 545, §5, 49 Stat. 1496; amended Pub. L. 90–258, §8, Feb. 19, 1968, 82 Stat. 28; Pub. L. 93–463, title I, §103(a), (f), title IV, §415, Oct. 23, 1974, 88 Stat. 1392, 1415; Pub. L. 95–405, §6, Sept. 30, 1978, 92 Stat. 869; Pub. L. 97–444, title II, §209, Jan. 11, 1983, 96 Stat. 2302; Pub. L. 102–546, title II, §207(b)(1), title IV, §402(5), Oct. 28, 1992, 106 Stat. 3604, 3624; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(7)], Dec. 21, 2000, 114 Stat. 2763, 2763A-407; Pub. L. 110–234, title XIII, §13202(a), May 22, 2008, 122 Stat. 1438; Pub. L. 110–246, §4(a), title XIII, §13202(a), June 18, 2008, 122 Stat. 1664, 2200.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2008—Subsec. (a). Pub. L. 110–246, §13202(a), inserted ", and in any significant price discovery contract traded or executed on an electronic trading facility or any agreement, contract, or transaction that is treated by a derivatives clearing organization, whether registered or not registered, as fungible with a significant price discovery contract" after "elsewhere".
2000—Subsec. (b). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(7)(A)], substituted "registered entity" for "clearinghouse and contract market".
Subsec. (f). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(7)(B)], substituted "registered entities" for "clearinghouses, contract markets, and exchanges".
1992—Subsec. (a). Pub. L. 102–546, §§207(b)(1), 402(5)(A), redesignated par. (1) as subsec. (a) and substituted "floor broker, or floor trader" for "or floor broker".
Subsec. (b). Pub. L. 102–546, §402(5)(A), redesignated par. (2) as subsec. (b).
Subsec. (c). Pub. L. 102–546, §402(5), redesignated par. (3) as subsec. (c) and substituted "subsection (b)" for "paragraph (2)".
Subsecs. (d) to (f). Pub. L. 102–546, §402(5)(A), redesignated pars. (4) to (6) as subsecs. (d) to (f), respectively.
1983—Par. (1). Pub. L. 97–444, §209(1), made reporting and recordkeeping requirements applicable to introducing brokers.
Par. (2). Pub. L. 97–444, §209(2), made customer daily trading records requirement applicable to introducing brokers.
1978—Par. (3). Pub. L. 95–405 substituted "Floor brokers" for "Brokers".
1974—Par. (1). Pub. L. 93–463, §§103(a), (f), 415, designated existing provisions as par. (1) and substituted "Commission" for "Secretary of Agriculture" and "United States Department of Agriculture".
Pars. (2) to (6). Pub. L. 93–463, §415, added pars. (2) to (6).
1968—Pub. L. 90–258 rephrased existing provisions to express reporting and recordkeeping requirements as a positive obligation of futures commission merchants and floor brokers, rather than as a ground for revoking or suspending registration and struck out provisions for revocation or suspension of registration. See section 9 of this title.
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, except as otherwise provided, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Amendment by section 13202(a) of Pub. L. 110–246 effective June 18, 2008, see section 13204(a) of Pub. L. 110–246, set out as a note under section 2 of this title.
Effective Date of 1992 Amendment
Amendment by section 207(b)(1) of Pub. L. 102–546 effective 180 days after Oct. 28, 1992, with Commodity Futures Trading Commission to issue any regulations necessary to implement such amendment no later than 180 days after Oct. 28, 1992, see section 207(c) of Pub. L. 102–546, set out as a note under section 6e of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–405 effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as a note under section 2 of this title.
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463 see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–258 effective 120 days after Feb. 19, 1968, see section 28 of Pub. L. 90–258, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 13 of act June 15, 1936, set out as an Effective Date of 1936 Amendment note under section 1 of this title.
§6h. False self-representation as registered entity member prohibited
It shall be unlawful for any person falsely to represent such person to be a member of a registered entity or the representative or agent of such member, or to be a registrant under this chapter or the representative or agent of any registrant, in soliciting or handling any order or contract for the purchase or sale of any commodity in interstate commerce or for future delivery, or falsely to represent in connection with the handling of any such order or contract that the same is to be or has been executed on, or by or through a member of, any registered entity.
(Sept. 21, 1922, ch. 369, §4h, as added June 15, 1936, ch. 545, §5, 49 Stat. 1496; amended Pub. L. 97–444, title II, §210, Jan. 11, 1983, 96 Stat. 2302; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(8)], Dec. 21, 2000, 114 Stat. 2763, 2763A-407.)
Editorial Notes
Amendments
2000—Pub. L. 106–554 substituted "registered entity" for "contract market" in two places.
1983—Pub. L. 97–444 struck out provisions formerly designated as par. (1) relating to conduct of offices or places of business anywhere in the United States or its territories that were used for dealing in commodities for future delivery unless such dealings were executed or consummated by or through a member of a contract market, which provisions were transferred to section 6(a) of this title, and broadened remaining provisions, formerly designated as par. (2), to prohibit false representations that a person is registered with the Commission in any capacity, and not only as a futures commission merchant, as previously provided.
Statutory Notes and Related Subsidiaries
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 13 of act June 15, 1936, set out as an Effective Date of 1936 Amendment note under section 1 of this title.
§6i. Reports of deals equal to or in excess of trading limits; books and records; cash and controlled transactions
It shall be unlawful for any person to make any contract for the purchase or sale of any commodity for future delivery on or subject to the rules of any contract market or derivatives transaction execution facility, or any significant price discovery contract traded or executed on an electronic trading facility or any agreement, contract, or transaction that is treated by a derivatives clearing organization, whether registered or not registered, as fungible with a significant price discovery contract—
(1) if such person shall directly or indirectly make such contracts with respect to any commodity or any future of such commodity during any one day in an amount equal to or in excess of such amount as shall be fixed from time to time by the Commission, and
(2) if such person shall directly or indirectly have or obtain a long or short position in any commodity or any future of such commodity equal to or in excess of such amount as shall be fixed from time to time by the Commission,
unless such person files or causes to be filed with the properly designated officer of the Commission such reports regarding any transactions or positions described in clauses (1) and (2) hereof as the Commission may by rule or regulation require and unless, in accordance with rules and regulations of the Commission, such person shall keep books and records of all such transactions and positions and transactions and positions in any such commodity traded on or subject to the rules of any other board of trade or electronic trading facility, and of cash or spot transactions in, and inventories and purchase and sale commitments of such commodity. Such books and records shall show complete details concerning all such transactions, positions, inventories, and commitments, including the names and addresses of all persons having any interest therein, and shall be open at all times to inspection by any representative of the Commission or the Department of Justice. For the purposes of this section, the futures and cash or spot transactions and positions of any person shall include such transactions and positions of any persons directly or indirectly controlled by such person.
(Sept. 21, 1922, ch. 369, §4i, as added June 15, 1936, ch. 545, §5, 49 Stat. 1496; amended Pub. L. 90–258, §9, Feb. 19, 1968, 82 Stat. 28; Pub. L. 93–463, title I, §103(a), (f), Oct. 23, 1974, 88 Stat. 1392; Pub. L. 97–444, title II, §211, Jan. 11, 1983, 96 Stat. 2303; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(9)], Dec. 21, 2000, 114 Stat. 2763, 2763A-407; Pub. L. 110–234, title XIII, §13202(b), May 22, 2008, 122 Stat. 1439; Pub. L. 110–246, §4(a), title XIII, §13202(b), June 18, 2008, 122 Stat. 1664, 2201.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2008—Pub. L. 110–246, §13202(b), in introductory provisions, inserted ", or any significant price discovery contract traded or executed on an electronic trading facility or any agreement, contract, or transaction that is treated by a derivatives clearing organization, whether registered or not registered, as fungible with a significant price discovery contract" after "derivatives transaction execution facility" and, in concluding provisions, inserted "or electronic trading facility" after "board of trade".
2000—Pub. L. 106–554 inserted "or derivatives transaction execution facility" after "contract market" in introductory provisions.
1983—Pub. L. 97–444 amended section generally by substantially restating provisions and inserting requirement that persons whose transactions and positions in any cash commodity or commodity future are equal to or in excess of amounts fixed by the Commission, must keep books and records of such transactions and positions as well as books and records of any such commodity traded on or subject to rules of any other board of trade, whether or not such person is required to file reports with the Commission concerning such transactions and positions.
1974—Pub. L. 93–463 substituted "Commission" for "Secretary of Agriculture" and "United States Department of Agriculture".
1968—Pub. L. 90–258 required recordkeeping of positions and of cash or spot transactions in commodities entered into, and inventories and purchase and sale commitments of commodities held, in any month in which reports are required to be kept, including details concerning positions, inventories, and commitments, and included controlled transactions and positions in the futures and cash or spot transactions and positions of any person.
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, except as otherwise provided, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Amendment by section 13202(b) of Pub. L. 110–246 effective June 18, 2008, see section 13204(a) of Pub. L. 110–246, set out as a note under section 2 of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–258 effective 120 days after Feb. 19, 1968, see section 28 of Pub. L. 90–258, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 13 of act June 15, 1936, set out as an Effective Date of 1936 Amendment note under section 1 of this title.
§6j. Restrictions on dual trading in security futures products on designated contract markets and registered derivatives transaction execution facilities
(a) Issuance of regulations
The Commission shall issue regulations to prohibit the privilege of dual trading in security futures products on each contract market and registered derivatives transaction execution facility. The regulations issued by the Commission under this section—
(1) shall provide that the prohibition of dual trading thereunder shall take effect upon issuance of the regulations; and
(2) shall provide exceptions, as the Commission determines appropriate, to ensure fairness and orderly trading in security futures product markets, including—
(A) exceptions for spread transactions and the correction of trading errors;
(B) allowance for a customer to designate in writing not less than once annually a named floor broker to execute orders for such customer, notwithstanding the regulations to prohibit the privilege of dual trading required under this section; and
(C) other measures reasonably designed to accommodate unique or special characteristics of individual boards of trade or contract markets, to address emergency or unusual market conditions, or otherwise to further the public interest consistent with the promotion of market efficiency, innovation, and expansion of investment opportunities, the protection of investors, and with the purposes of this section.
(b) "Dual trading" defined
As used in this section, the term "dual trading" means the execution of customer orders by a floor broker during the same trading session in which the floor broker executes any trade in the same contract market or registered derivatives transaction execution facility for—
(1) the account of such floor broker;
(2) an account for which such floor broker has trading discretion; or
(3) an account controlled by a person with whom such floor broker has a relationship through membership in a broker association.
(c) "Broker association" defined
As used in this section, the term "broker association" shall include two or more contract market members or registered derivatives transaction execution facility members with floor trading privileges of whom at least one is acting as a floor broker, who—
(1) engage in floor brokerage activity on behalf of the same employer,
(2) have an employer and employee relationship which relates to floor brokerage activity,
(3) share profits and losses associated with their brokerage or trading activity, or
(4) regularly share a deck of orders.
(Sept. 21, 1922, ch. 369, §4j, as added Pub. L. 93–463, title II, §203, Oct. 23, 1974, 88 Stat. 1396; amended Pub. L. 94–16, §2, Apr. 16, 1975, 89 Stat. 77; Pub. L. 102–546, title I, §§101, 102(a), Oct. 28, 1992, 106 Stat. 3591, 3594; Pub. L. 106–554, §1(a)(5) [title II, §251(c)], Dec. 21, 2000, 114 Stat. 2763, 2763A-442.)
Editorial Notes
Amendments
2000—Pub. L. 106–554 amended section generally. Prior to amendment, section required Commission to issue regulations to prohibit the privilege of dual trading on contract markets, allowed for certain exemptions, required Commission to make determinations relating to trading by floor brokers and futures commission merchants, and restricted trading among members of broker associations.
1992—Subsec. (a). Pub. L. 102–546, §101(a)(3), added subsec. (a).
Subsec. (b). Pub. L. 102–546, §101(a)(1), (2), redesignated par. (1) as subsec. (b) and substituted "If, in addition to the regulations issued pursuant to subsection (a) of this section, the Commission has reason to believe that dual trading-related or facilitated abuses are not being or cannot be effectively addressed by subsection (a) of this section, the Commission shall" for "The Commission shall within nine months after the effective date of the Commodity Futures Trading Commission Act of 1974, and subsequently when it determines that changes are required,".
Subsec. (c). Pub. L. 102–546, §101(a)(1), redesignated par. (2) as subsec. (c).
Subsec. (d). Pub. L. 102–546, §102(a), added subsec. (d).
1975—Pub. L. 94–16 substituted "nine months" for "six months" in pars. (1) and (2).
Statutory Notes and Related Subsidiaries
Effective Date of 1992 Amendment
Pub. L. 102–546, title I, §102(b), Oct. 28, 1992, 106 Stat. 3594, provided that: "The amendment made by subsection (a) [amending this section] shall become effective two hundred and seventy days after the date of enactment of this Act [Oct. 28, 1992]."
Effective Date
For effective date of section, see section 418 of Pub. L. 93–463, set out as an Effective Date of 1974 Amendment note under section 2 of this title.
§6k. Registration of associates of futures commission merchants, commodity pool operators, and commodity trading advisors; required disclosure of disqualifications; exemptions for associated persons
(1) It shall be unlawful for any person to be associated with a futures commission merchant as a partner, officer, or employee, or to be associated with an introducing broker as a partner, officer, employee, or agent (or any person occupying a similar status or performing similar functions), in any capacity that involves (i) the solicitation or acceptance of customers' orders (other than in a clerical capacity) or (ii) the supervision of any person or persons so engaged, unless such person is registered with the Commission under this chapter as an associated person of such futures commission merchant or of such introducing broker and such registration shall not have expired, been suspended (and the period of suspension has not expired), or been revoked. It shall be unlawful for a futures commission merchant or introducing broker to permit such a person to become or remain associated with the futures commission merchant or introducing broker in any such capacity if such futures commission merchant or introducing broker knew or should have known that such person was not so registered or that such registration had expired, been suspended (and the period of suspension has not expired), or been revoked. Any individual who is registered as a floor broker, futures commission merchant, or introducing broker (and such registration is not suspended or revoked) need not also register under this paragraph.
(2) It shall be unlawful for any person to be associated with a commodity pool operator as a partner, officer, employee, consultant, or agent (or any person occupying a similar status or performing similar functions), in any capacity that involves (i) the solicitation of funds, securities, or property for a participation in a commodity pool or (ii) the supervision of any person or persons so engaged, unless such person is registered with the Commission under this chapter as an associated person of such commodity pool operator and such registration shall not have expired, been suspended (and the period of suspension has not expired), or been revoked. It shall be unlawful for a commodity pool operator to permit such a person to become or remain associated with the commodity pool operator in any such capacity if the commodity pool operator knew or should have known that such person was not so registered or that such registration had expired, been suspended (and the period of suspension has not expired), or been revoked. Any individual who is registered as a floor broker, futures commission merchant, introducing broker, commodity pool operator, or as an associated person of another category of registrant under this section (and such registration is not suspended or revoked) need not also register under this paragraph. The Commission may exempt any person or class of persons from having to register under this paragraph by rule, regulation, or order.
(3) It shall be unlawful for any person to be associated with a commodity trading advisor as a partner, officer, employee, consultant, or agent (or any person occupying a similar status or performing similar functions), in any capacity which involves (i) the solicitation of a client's or prospective client's discretionary account or (ii) the supervision of any person or persons so engaged, unless such person is registered with the Commission under this chapter as an associated person of such commodity trading advisor and such registration shall not have expired, been suspended (and the period of suspension has not expired), or been revoked. It shall be unlawful for a commodity trading advisor to permit such a person to become or remain associated with the commodity trading advisor in any such capacity if the commodity trading advisor knew or should have known that such person was not so registered or that such registration had expired, been suspended (and the period of suspension has not expired), or been revoked. Any individual who is registered as a floor broker, futures commission merchant, introducing broker, commodity trading advisor, or as an associated person of another category of registrant under this section (and such registration is not suspended or revoked) need not also register under this paragraph. The Commission may exempt any person or class of persons from having to register under this paragraph by rule, regulation, or order.
(4) Any person desiring to be registered as an associated person of a futures commission merchant, of an introducing broker, of a commodity pool operator, or of a commodity trading advisor shall make application to the Commission in the form and manner prescribed by the Commission, giving such information and facts as the Commission may deem necessary concerning the applicant. Such person, when registered hereunder, shall likewise continue to report and furnish to the Commission such information as the Commission may require. Such registration shall expire at such time as the Commission may by rule, regulation, or order prescribe.
(5) It shall be unlawful for any registrant to permit a person to become or remain an associated person of such registrant, if the registrant knew or should have known of facts regarding such associated person that are set forth as statutory disqualifications in section 12a(2) of this title, unless such registrant has notified the Commission of such facts and the Commission has determined that such person should be registered or temporarily licensed.
(6) Any associated person of a broker or dealer that is registered with the Securities and Exchange Commission, and who limits its solicitation of orders, acceptance of orders, or execution of orders, or placing of orders on behalf of others involving any contracts of sale of any commodity for future delivery or any option on such a contract, on or subject to the rules of any contract market or registered derivatives transaction execution facility to security futures products, shall be exempt from the following provisions of this chapter and the rules thereunder:
(A) Subsections (b), (d), (e), and (g) of section 6c of this title.
(B) Sections 6d, 6e, and 6h of this title.
(C) Subsections (b) and (c) of section 6f of this title.
(D) Section 6j of this title.
(E) Paragraph (1) of this section.
(F) Section 6p of this title.
(G) Section 13a–2 of this title.
(H) Subsections (d) and (g) of section 12 of this title.
(I) Section 20 of this title.
(Sept. 21, 1922, ch. 369, §4k, as added Pub. L. 93–463, title II, §204(a), Oct. 23, 1974, 88 Stat. 1396; amended Pub. L. 95–405, §7, Sept. 30, 1978, 92 Stat. 869; Pub. L. 97–444, title II, §212, Jan. 11, 1983, 96 Stat. 2303; Pub. L. 106–554, §1(a)(5) [title II, §252(d)], Dec. 21, 2000, 114 Stat. 2763, 2763A-448; Pub. L. 110–234, title XIII, §13105(c), May 22, 2008, 122 Stat. 1434; Pub. L. 110–246, §4(a), title XIII, §13105(c), June 18, 2008, 122 Stat. 1664, 2196.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2008—Pars. (5), (6). Pub. L. 110–246, §13105(c), redesignated par. (5) relating to exempting associated persons or dealers from provisions of this chapter as (6).
2000—Par. (5). Pub. L. 106–554, §1(a)(5) [title II, §252(d)], which directed amendment of this section by "inserting after paragraph (4), as added by subsection (c) of this section" a new par. (5) relating to exempting associated persons or dealers from provisions of this chapter, was executed by adding that par. (5) at the end. Section 1(a)(5)[title II, §252(c)] did not add a par. (4) to this section.
1983—Par. (1). Pub. L. 97–444 amended par. (1) generally to apply to introducing brokers and persons associated with introducing brokers.
Par. (2). Pub. L. 97–444 added par. (2). Former par. (2) redesignated (4).
Par. (3). Pub. L. 97–444 added par. (3). Former par. (3), which empowered Commission to authorize a registered futures association to perform any portion of the registration functions under this section, in accordance with rules approved by the Commission, and subject to the provisions of this chapter applicable to registrations granted by the Commission, was struck out.
Par. (4). Pub. L. 97–444 redesignated former par. (2) as (4) and substituted "Any person desiring to be registered as an associated person of a futures commission merchant, of an introducing broker, of a commodity pool operator, or of a commodity trading advisor shall make application to the Commission in the form and manner prescribed by the Commission, giving such information and facts as the Commission may deem necessary concerning the applicant. Such person, when registered hereunder, shall likewise continue to report and furnish to the Commission such information as the Commission may require. Such registration shall expire at such time as the Commission may by rule, regulation, or order prescribe" for "Any such person desiring to be registered shall make application to the Commission in the form and manner prescribed by the Commission, giving such information and facts as the Commission may deem necessary concerning the applicant. Such person, when registered hereunder, shall likewise continue to report and furnish to the Commission such information as the Commission may require. Such registration shall expire two years after the effective date thereof or at such other time, not less than one year from the date of issuance thereof, as the Commission may by rule, regulation, or order prescribe and shall be renewed upon application therefor, unless the registration has been suspended (and the period of such suspension has not expired) or revoked after notice and hearing as prescribed in section 9 of this title: Provided, That upon initial registration, unless the Commission otherwise prescribes by rule, regulation, or order, the effective period of such registration shall be not more than two years nor less than one year from the effective date thereof".
Par. (5). Pub. L. 97–444 added par. (5).
1978—Par. (2). Pub. L. 95–405, §7(1), inserted provisions authorizing the Commission to prescribe the period of registration of not less than one year for associated persons.
Par. (3). Pub. L. 95–405, §7(2), added par. (3).
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective 120 days after Jan. 11, 1983, or such earlier date as the Commission shall prescribe by regulation, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–405 effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 418 of Pub. L. 93–463, set out as an Effective Date of 1974 Amendment note under section 2 of this title.
§6l. Commodity trading advisors and commodity pool operators; Congressional finding
It is hereby found that the activities of commodity trading advisors and commodity pool operators are affected with a national public interest in that, among other things—
(1) their advice, counsel, publications, writings, analyses, and reports are furnished and distributed, and their contracts, solicitations, subscriptions, agreements, and other arrangements with clients take place and are negotiated and performed by the use of the mails and other means and instrumentalities of interstate commerce;
(2) their advice, counsel, publications, writings, analyses, and reports customarily relate to and their operations are directed toward and cause the purchase and sale of commodities for future delivery on or subject to the rules of contract markets or derivatives transaction execution facilities; and
(3) the foregoing transactions occur in such volume as to affect substantially transactions on contract markets or derivatives transaction execution facilities.
(Sept. 21, 1922, ch. 369, §4l, as added Pub. L. 93–463, title II, §205(a), Oct. 23, 1974, 88 Stat. 1397; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(10)], Dec. 21, 2000, 114 Stat. 2763, 2763A-408.)
Editorial Notes
Amendments
2000—Pars. (2), (3). Pub. L. 106–554 inserted "or derivatives transaction execution facilities" after "contract markets".
Statutory Notes and Related Subsidiaries
Effective Date
For effective date of section, see section 418 of Pub. L. 93–463, set out as an Effective Date of 1974 Amendment note under section 2 of this title.
§6m. Use of mails or other means or instrumentalities of interstate commerce by commodity trading advisors and commodity pool operators; relation to other law
(1) It shall be unlawful for any commodity trading advisor or commodity pool operator, unless registered under this chapter, to make use of the mails or any means or instrumentality of interstate commerce in connection with his business as such commodity trading advisor or commodity pool operator: Provided, That the provisions of this section shall not apply to any commodity trading advisor who, during the course of the preceding twelve months, has not furnished commodity trading advice to more than fifteen persons and who does not hold himself out generally to the public as a commodity trading advisor. The provisions of this section shall not apply to any commodity trading advisor who is a (1) dealer, processor, broker, or seller in cash market transactions of any commodity specifically set forth in section 2(a) of this title prior to October 23, 1974, (or products thereof) or (2) nonprofit, voluntary membership, general farm organization, who provides advice on the sale or purchase of any commodity specifically set forth in section 2(a) of this title prior to October 23, 1974; if the advice by the person described in clause (1) or (2) of this sentence as a commodity trading advisor is solely incidental to the conduct of that person's business: Provided, That such person shall be subject to proceedings under section 18 of this title.
(2) Nothing in this chapter shall relieve any person of any obligation or duty, or affect the availability of any right or remedy available to the Securities and Exchange Commission or any private party arising under the Securities Act of 1933 [15 U.S.C. 77a et seq.] or the Securities Exchange Act of 1934 [15 U.S.C. 78a et seq.] governing the issuance, offer, purchase, or sale of securities of a commodity pool, or of persons engaged in transactions with respect to such securities, or reporting by a commodity pool.
(3)
(A)
(B)
(C)
(Sept. 21, 1922, ch. 369, §4m, as added Pub. L. 93–463, title II, §205(a), Oct. 23, 1974, 88 Stat. 1398; amended Pub. L. 95–405, §8, Sept. 30, 1978, 92 Stat. 870; Pub. L. 97–444, title I, §103, Jan. 11, 1983, 96 Stat. 2296; Pub. L. 106–554, §1(a)(5) [title II, §251(d)], Dec. 21, 2000, 114 Stat. 2763, 2763A-443; Pub. L. 111–203, title VII, §§721(e)(2), 749(b), July 21, 2010, 124 Stat. 1671, 1747.)
Editorial Notes
References in Text
The Securities Act of 1933, referred to in par. (2), is title I of act May 27, 1933, ch. 38, 48 Stat. 74, which is classified generally to subchapter I (§77a et seq.) of chapter 2A of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 77a of Title 15 and Tables.
The Securities Exchange Act of 1934, referred to in par. (2), is act June 6, 1934, ch. 404, 48 Stat. 881, which is classified principally to chapter 2B (§78a et seq.) of Title 15. For complete classification of this Act to the Code, see section 78a of Title 15 and Tables.
Amendments
2010—Par. (3). Pub. L. 111–203, §749(b), inserted heading, designated existing provisions as subpar. (A) and inserted heading, substituted "Paragraph (1)" for "Subsection (1) of this section" and "to any commodity pool that is engaged primarily in trading commodity interests." for "to any investment trust, syndicate, or similar form of enterprise that is engaged primarily in trading in any commodity for future delivery on or subject to the rules of any contract market or registered derivatives transaction execution facility.", and added subpars. (B) and (C).
Pub. L. 111–203, §721(e)(2), substituted "section 1a" for "section 1a(6)".
2000—Par. (3). Pub. L. 106–554 added par. (3).
1983—Pub. L. 97–444 designated existing provisions as par. (1) and added par. (2).
1978—Pub. L. 95–405 inserted provisions relating to applicability of this section to commodity trading advisors who are dealers, processors, brokers, or sellers in cash market transactions of specifically listed commodities or nonprofit, voluntary membership, general farm organizations who provide advice on sale or purchase of specifically listed commodities if the advice by the person described in cl. (1) or (2) of this sentence is incidental solely to the conduct to the person's business and that such person be subject to proceedings under section 18 of this title.
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–405 effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 418 of Pub. L. 93–463, set out as an Effective Date of 1974 Amendment note under section 2 of this title.
§6n. Registration of commodity trading advisors and commodity pool operators; application; expiration and renewal; record keeping and reports; disclosure; statements of account
(1) Any commodity trading advisor or commodity pool operator, or any person who contemplates becoming a commodity trading advisor or commodity pool operator, may register under this chapter by filing an application with the Commission. Such application shall contain such information, in such form and detail, as the Commission may, by rules and regulations, prescribe as necessary or appropriate in the public interest, including the following:
(A) the name and form of organization, including capital structure, under which the applicant engages or intends to engage in business; the name of the State under the laws of which he is organized; the location of his principal business office and branch offices, if any; the names and addresses of all partners, officers, directors, and persons performing similar functions or, if the applicant be an individual, of such individual; and the number of employees;
(B) the education, the business affiliations for the past ten years, and the present business affiliations of the applicant and of his partners, officers, directors, and persons performing similar functions and of any controlling person thereof;
(C) the nature of the business of the applicant, including the manner of giving advice and rendering of analyses or reports;
(D) the nature and scope of the authority of the applicant with respect to clients' funds and accounts;
(E) the basis upon which the applicant is or will be compensated; and
(F) such other information as the Commission may require to determine whether the applicant is qualified for registration.
(2) Each registration under this section shall expire on the 30th day of June of each year, or at such other time, not less than one year from the effective date thereof, as the Commission may by rule, regulation, or order prescribe, and shall be renewed upon application therefor subject to the same requirements as in the case of an original application.
(3)(A) Every commodity trading advisor and commodity pool operator registered under this chapter shall maintain books and records and file such reports in such form and manner as may be prescribed by the Commission. All such books and records shall be kept for a period of at least three years, or longer if the Commission so directs, and shall be open to inspection by any representative of the Commission or the Department of Justice. Upon the request of the Commission, a registered commodity trading advisor or commodity pool operator shall furnish the name and address of each client, subscriber, or participant, and submit samples or copies of all reports, letters, circulars, memorandums, publications, writings, or other literature or advice distributed to clients, subscribers, or participants, or prospective clients, subscribers, or participants.
(B) Unless otherwise authorized by the Commission by rule or regulation, all commodity trading advisors and commodity pool operators shall make a full and complete disclosure to their subscribers, clients, or participants of all futures market positions taken or held by the individual principals of their organization.
(4) Every commodity pool operator shall regularly furnish statements of account to each participant in his operations. Such statements shall be in such form and manner as may be prescribed by the Commission and shall include complete information as to the current status of all trading accounts in which such participant has an interest.
(Sept. 21, 1922, ch. 369, §4n, as added Pub. L. 93–463, title II, §205(a), Oct. 23, 1974, 88 Stat. 1398; amended Pub. L. 95–405, §9, Sept. 30, 1978, 92 Stat. 870; Pub. L. 97–444, title II, §213, Jan. 11, 1983, 96 Stat. 2305.)
Editorial Notes
Amendments
1983—Par. (5). Pub. L. 97–444 struck out par. (5) which authorized Commission, without hearing, to deny registration to any person as a commodity trading advisor or commodity pool operator if such person was subject to an outstanding order under this chapter denying to such person trading privileges on any contract market, or suspending or revoking the registration of such person as a commodity trading advisor, commodity pool operator, futures commission merchant, or floor broker, or suspending or expelling such person from membership on any contract market.
Par. (6). Pub. L. 97–444 struck out par. (6) which authorized Commission to deny registration or revoke or suspend the registration of any commodity trading advisor or commodity pool operator if the Commission found that such denial, revocation, or suspension was in the public interest and that such person had been guilty of certain specified activities. See section 12a(2), (3), and (4) of this title.
1978—Par. (2). Pub. L. 95–405, §9(1)–(3), redesignated par. (3) as (2) and substituted "Each registration" for "All registrations" and inserted "or at such other time, not less than one year from the effective date thereof, as the Commission may rule, regulation, or order prescribe," after "June of each year,". Former par. (2), which provided that registration under this section becomes effective thirty days after the receipt of such application by the Commission, or within such shorter period of time as the Commission may determine, was struck out.
Pars. (3) to (6). Pub. L. 95–405, §9(1), redesignated pars. (4) to (7) as (3) to (6), respectively. Former par. (3) redesignated (2).
Statutory Notes and Related Subsidiaries
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–405 effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 418 of Pub. L. 93–463, set out as an Effective Date of 1974 Amendment note under section 2 of this title.
§6o. Fraud and misrepresentation by commodity trading advisors, commodity pool operators, and associated persons
(1) It shall be unlawful for a commodity trading advisor, associated person of a commodity trading advisor, commodity pool operator, or associated person of a commodity pool operator, by use of the mails or any means or instrumentality of interstate commerce, directly or indirectly—
(A) to employ any device, scheme, or artifice to defraud any client or participant or prospective client or participant; or
(B) to engage in any transaction, practice, or course of business which operates as a fraud or deceit upon any client or participant or prospective client or participant.
(2) It shall be unlawful for any commodity trading advisor, associated person of a commodity trading advisor, commodity pool operator, or associated person of a commodity pool operator registered under this chapter to represent or imply in any manner whatsoever that such person has been sponsored, recommended, or approved, or that such person's abilities or qualifications have in any respect been passed upon, by the United States or any agency or officer thereof. This section shall not be construed to prohibit a statement that a person is registered under this chapter as a commodity trading advisor, associated person of a commodity trading advisor, commodity pool operator, or associated person of a commodity pool operator, if such statement is true in fact and if the effect of such registration is not misrepresented.
(Sept. 21, 1922, ch. 369, §4o, as added Pub. L. 93–463, title II, §205(a), Oct. 23, 1974, 88 Stat. 1399; amended Pub. L. 95–405, §10, Sept. 30, 1978, 92 Stat. 870; Pub. L. 97–444, title II, §214, Jan. 11, 1983, 96 Stat. 2305.)
Editorial Notes
Amendments
1983—Par. (1). Pub. L. 97–444 made the antifraud prohibition applicable to an associated person of a commodity trading advisor or a commodity pool operator.
Par. (2). Pub. L. 97–444 made the misrepresentation prohibition applicable to an associated person of a commodity training advisor or a commodity pool operator, authorized registration statements of such persons, and substituted "such person" and "such person's abilities" for "he" before "has been sponsored" and "his abilities", respectively.
1978—Par. (1). Pub. L. 95–405 struck out "registered under this chapter" after "pool operator".
Statutory Notes and Related Subsidiaries
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–405 effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 418 of Pub. L. 93–463, set out as an Effective Date of 1974 Amendment note under section 2 of this title.
§6o–1. Transferred
Editorial Notes
Codification
Section, Sept. 21, 1922, ch. 369, §4q, formerly §4p, as added Pub. L. 106–554, §1(a)(5) [title I, §121], Dec. 21, 2000, 114 Stat. 2763, 2763A-404, and renumbered, which related to special procedures to encourage and facilitate bona fide hedging by agricultural producers, was transferred to section 6q of this title.
§6p. Standards and examinations
(a) The Commission may specify by rules and regulations appropriate standards with respect to training, experience, and such other qualifications as the Commission finds necessary or desirable to insure the fitness of persons required to be registered with the Commission. In connection therewith, the Commission may prescribe by rules and regulations the adoption of written proficiency examinations to be given to applicants for registration and the establishment of reasonable fees to be charged to such applicants to cover the administration of such examinations. The Commission may further prescribe by rules and regulations that, in lieu of examinations administered by the Commission, futures associations registered under section 21 of this title, contract markets, or derivatives transaction execution facilities may adopt written proficiency examinations to be given to applicants for registration and charge reasonable fees to such applicants to cover the administration of such examinations. Notwithstanding any other provision of this section, the Commission may specify by rules and regulations such terms and conditions as it deems appropriate to protect the public interest wherein exception to any written proficiency examination shall be made with respect to individuals who have demonstrated, through training and experience, the degree of proficiency and skill necessary to protect the interests of customers, clients, pool participants, or other members of the public with whom such individuals deal.
(b) The Commission shall issue regulations to require new registrants, within six months after receiving such registration, to attend a training session, and all other registrants to attend periodic training sessions, to ensure that registrants understand their responsibilities to the public under this chapter, including responsibilities to observe just and equitable principles of trade, any rule or regulation of the Commission, any rule of any appropriate contract market, derivatives transaction execution facility, registered futures association, or other self-regulatory organization, or any other applicable Federal or state 1 law, rule or regulation.
(Sept. 21, 1922, ch. 369, §4p, as added Pub. L. 93–463, title II, §206, Oct. 23, 1974, 88 Stat. 1400; amended Pub. L. 97–444, title II, §215, Jan. 11, 1983, 96 Stat. 2305; Pub. L. 102–546, title II, §210(a), Oct. 28, 1992, 106 Stat. 3607; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(11)], Dec. 21, 2000, 114 Stat. 2763, 2763A-408.)
Editorial Notes
Codification
Another section 4p of act Sept. 21, 1922, was renumbered section 4q and is classified to section 6q of this title.
Amendments
2000—Subsec. (a). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(11)(A)], substituted "title, contract markets, or derivatives transaction execution facilities" for "title or contract markets".
Subsec. (b). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(11)(B)], inserted "derivatives transaction execution facility," after "contract market,".
1992—Pub. L. 102–546 designated existing provisions as subsec. (a) and added subsec. (b).
1983—Pub. L. 97–444 substituted "persons required to be registered with the Commission" for "futures commission merchants, floor brokers, and those persons associated with futures commission merchants or floor brokers" in first sentence, "customers, clients, pool participants, or other members of the public with whom such individuals deal" for "the customers of futures commission merchants and floor brokers" in last sentence, and in second and third sentences struck out "as futures commission merchants, floor brokers, and those persons associated with futures commission merchants or floor brokers," after "applicants for registration".
Statutory Notes and Related Subsidiaries
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 418 of Pub. L. 93–463, set out as an Effective Date of 1974 Amendment note under section 2 of this title.
Regulations
Pub. L. 102–546, title II, §210(b), Oct. 28, 1992, 106 Stat. 3607, provided that: "The Commodity Futures Trading Commission shall issue the regulations required by section 4p(b) of the Commodity Exchange Act [7 U.S.C. 6p(b)], as added by subsection (a), no later than one hundred and eighty days after the date of enactment of this Act [Oct. 28, 1992]."
1 So in original. Probably should be capitalized.
§6q. Special procedures to encourage and facilitate bona fide hedging by agricultural producers
(a) Authority
The Commission shall consider issuing rules or orders which—
(1) prescribe procedures under which each contract market is to provide for orderly delivery, including temporary storage costs, of any agricultural commodity enumerated in section 1a(9) of this title which is the subject of a contract for purchase or sale for future delivery;
(2) increase the ease with which domestic agricultural producers may participate in contract markets, including by addressing cost and margin requirements, so as to better enable the producers to hedge price risk associated with their production;
(3) provide flexibility in the minimum quantities of such agricultural commodities that may be the subject of a contract for purchase or sale for future delivery that is traded on a contract market, to better allow domestic agricultural producers to hedge such price risk; and
(4) encourage contract markets to provide information and otherwise facilitate the participation of domestic agricultural producers in contract markets.
(b) Report
Within 1 year after December 21, 2000, the Commission shall submit to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate a report on the steps it has taken to implement this section and on the activities of contract markets pursuant to this section.
(Sept. 21, 1922, ch. 369, §4q, formerly §4p, as added Pub. L. 106–554, §1(a)(5) [title I, §121], Dec. 21, 2000, 114 Stat. 2763, 2763A-404; renumbered §4q, Pub. L. 110–234, title XIII, §13105(d), May 22, 2008, 122 Stat. 1434, and Pub. L. 110–246, §4(a), title XIII, §13105(d), June 18, 2008, 122 Stat. 1664, 2196; Pub. L. 111–203, title VII, §721(e)(3), July 21, 2010, 124 Stat. 1671.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 both renumbered this section as section 4q of act Sept. 21, 1922. Pub. L. 110–234 was repealed by section 4(a) of Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234.
Section was formerly classified to section 6o–1 of this title.
Amendments
2010—Subsec. (a)(1). Pub. L. 111–203 substituted "section 1a(9)" for "section 1a(4)".
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
§6r. Reporting and recordkeeping for uncleared swaps
(a) Required reporting of swaps not accepted by any derivatives clearing organization
(1) In general
Each swap that is not accepted for clearing by any derivatives clearing organization shall be reported to—
(A) a swap data repository described in section 24a of this title; or
(B) in the case in which there is no swap data repository that would accept the swap, to the Commission pursuant to this section within such time period as the Commission may by rule or regulation prescribe.
(2) Transition rule for preenactment swaps
(A) Swaps entered into before July 21, 2010
Each swap entered into before July 21, 2010, the terms of which have not expired as of July 21, 2010, shall be reported to a registered swap data repository or the Commission by a date that is not later than—
(i) 30 days after issuance of the interim final rule; or
(ii) such other period as the Commission determines to be appropriate.
(B) Commission rulemaking
The Commission shall promulgate an interim final rule within 90 days of July 21, 2010, providing for the reporting of each swap entered into before July 21, 2010.
(C) Effective date
The reporting provisions described in this section shall be effective upon the enactment of this section.
(3) Reporting obligations
(A) Swaps in which only 1 counterparty is a swap dealer or major swap participant
With respect to a swap in which only 1 counterparty is a swap dealer or major swap participant, the swap dealer or major swap participant shall report the swap as required under paragraphs (1) and (2).
(B) Swaps in which 1 counterparty is a swap dealer and the other a major swap participant
With respect to a swap in which 1 counterparty is a swap dealer and the other a major swap participant, the swap dealer shall report the swap as required under paragraphs (1) and (2).
(C) Other swaps
With respect to any other swap not described in subparagraph (A) or (B), the counterparties to the swap shall select a counterparty to report the swap as required under paragraphs (1) and (2).
(b) Duties of certain individuals
Any individual or entity that enters into a swap shall meet each requirement described in subsection (c) if the individual or entity did not—
(1) clear the swap in accordance with section 2(h)(1) of this title; or
(2) have the data regarding the swap accepted by a swap data repository in accordance with rules (including timeframes) adopted by the Commission under section 24a of this title.
(c) Requirements
An individual or entity described in subsection (b) shall—
(1) upon written request from the Commission, provide reports regarding the swaps held by the individual or entity to the Commission in such form and in such manner as the Commission may request; and
(2) maintain books and records pertaining to the swaps held by the individual or entity in such form, in such manner, and for such period as the Commission may require, which shall be open to inspection by—
(A) any representative of the Commission;
(B) an appropriate prudential regulator;
(C) the Securities and Exchange Commission;
(D) the Financial Stability Oversight Council; and
(E) the Department of Justice.
(d) Identical data
In prescribing rules under this section, the Commission shall require individuals and entities described in subsection (b) to submit to the Commission a report that contains data that is not less comprehensive than the data required to be collected by swap data repositories under section 24a of this title.
(Sept. 21, 1922, ch. 369, §4r, as added Pub. L. 111–203, title VII, §729, July 21, 2010, 124 Stat. 1701.)
Statutory Notes and Related Subsidiaries
Effective Date
Section effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as an Effective Date of 2010 Amendment note under section 1a of this title.
§6s. Registration and regulation of swap dealers and major swap participants
(a) Registration
(1) Swap dealers
It shall be unlawful for any person to act as a swap dealer unless the person is registered as a swap dealer with the Commission.
(2) Major swap participants
It shall be unlawful for any person to act as a major swap participant unless the person is registered as a major swap participant with the Commission.
(b) Requirements
(1) In general
A person shall register as a swap dealer or major swap participant by filing a registration application with the Commission.
(2) Contents
(A) In general
The application shall be made in such form and manner as prescribed by the Commission, and shall contain such information, as the Commission considers necessary concerning the business in which the applicant is or will be engaged.
(B) Continual reporting
A person that is registered as a swap dealer or major swap participant shall continue to submit to the Commission reports that contain such information pertaining to the business of the person as the Commission may require.
(3) Expiration
Each registration under this section shall expire at such time as the Commission may prescribe by rule or regulation.
(4) Rules
Except as provided in subsections (d) and (e), the Commission may prescribe rules applicable to swap dealers and major swap participants, including rules that limit the activities of swap dealers and major swap participants.
(5) Transition
Rules under this section shall provide for the registration of swap dealers and major swap participants not later than 1 year after July 21, 2010.
(6) Statutory disqualification
Except to the extent otherwise specifically provided by rule, regulation, or order, it shall be unlawful for a swap dealer or a major swap participant to permit any person associated with a swap dealer or a major swap participant who is subject to a statutory disqualification to effect or be involved in effecting swaps on behalf of the swap dealer or major swap participant, if the swap dealer or major swap participant knew, or in the exercise of reasonable care should have known, of the statutory disqualification.
(c) Dual registration
(1) Swap dealer
Any person that is required to be registered as a swap dealer under this section shall register with the Commission regardless of whether the person also is a depository institution or is registered with the Securities and Exchange Commission as a security-based swap dealer.
(2) Major swap participant
Any person that is required to be registered as a major swap participant under this section shall register with the Commission regardless of whether the person also is a depository institution or is registered with the Securities and Exchange Commission as a major security-based swap participant.
(d) Rulemakings
(1) In general
The Commission shall adopt rules for persons that are registered as swap dealers or major swap participants under this section.
(2) Exception for prudential requirements
(A) In general
The Commission may not prescribe rules imposing prudential requirements on swap dealers or major swap participants for which there is a prudential regulator.
(B) Applicability
Subparagraph (A) does not limit the authority of the Commission to prescribe rules as directed under this section.
(e) Capital and margin requirements
(1) In general
(A) Swap dealers and major swap participants that are banks
Each registered swap dealer and major swap participant for which there is a prudential regulator shall meet such minimum capital requirements and minimum initial and variation margin requirements as the prudential regulator shall by rule or regulation prescribe under paragraph (2)(A).
(B) Swap dealers and major swap participants that are not banks
Each registered swap dealer and major swap participant for which there is not a prudential regulator shall meet such minimum capital requirements and minimum initial and variation margin requirements as the Commission shall by rule or regulation prescribe under paragraph (2)(B).
(2) Rules
(A) Swap dealers and major swap participants that are banks
The prudential regulators, in consultation with the Commission and the Securities and Exchange Commission, shall jointly adopt rules for swap dealers and major swap participants, with respect to their activities as a swap dealer or major swap participant, for which there is a prudential regulator imposing—
(i) capital requirements; and
(ii) both initial and variation margin requirements on all swaps that are not cleared by a registered derivatives clearing organization.
(B) Swap dealers and major swap participants that are not banks
The Commission shall adopt rules for swap dealers and major swap participants, with respect to their activities as a swap dealer or major swap participant, for which there is not a prudential regulator imposing—
(i) capital requirements; and
(ii) both initial and variation margin requirements on all swaps that are not cleared by a registered derivatives clearing organization.
(C) Capital
In setting capital requirements for a person that is designated as a swap dealer or a major swap participant for a single type or single class or category of swap or activities, the prudential regulator and the Commission shall take into account the risks associated with other types of swaps or classes of swaps or categories of swaps engaged in and the other activities conducted by that person that are not otherwise subject to regulation applicable to that person by virtue of the status of the person as a swap dealer or a major swap participant.
(3) Standards for capital and margin
(A) In general
To offset the greater risk to the swap dealer or major swap participant and the financial system arising from the use of swaps that are not cleared, the requirements imposed under paragraph (2) shall—
(i) help ensure the safety and soundness of the swap dealer or major swap participant; and
(ii) be appropriate for the risk associated with the non-cleared swaps held as a swap dealer or major swap participant.
(B) Rule of construction
(i) In general
Nothing in this section shall limit, or be construed to limit, the authority—
(I) of the Commission to set financial responsibility rules for a futures commission merchant or introducing broker registered pursuant to section 6f(a) of this title (except for section 6f(a)(3) of this title) in accordance with section 6f(b) of this title; or
(II) of the Securities and Exchange Commission to set financial responsibility rules for a broker or dealer registered pursuant to section 15(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(b)) (except for section 15(b)(11) of that Act (15 U.S.C. 78o(b)(11)) 1 in accordance with section 15(c)(3) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(c)(3)).
(ii) Futures commission merchants and other dealers
A futures commission merchant, introducing broker, broker, or dealer shall maintain sufficient capital to comply with the stricter of any applicable capital requirements to which such futures commission merchant, introducing broker, broker, or dealer is subject to under this chapter or the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.).
(C) Margin requirements
In prescribing margin requirements under this subsection, the prudential regulator with respect to swap dealers and major swap participants for which it is the prudential regulator and the Commission with respect to swap dealers and major swap participants for which there is no prudential regulator shall permit the use of noncash collateral, as the regulator or the Commission determines to be consistent with—
(i) preserving the financial integrity of markets trading swaps; and
(ii) preserving the stability of the United States financial system.
(D) Comparability of capital and margin requirements
(i) In general
The prudential regulators, the Commission, and the Securities and Exchange Commission shall periodically (but not less frequently than annually) consult on minimum capital requirements and minimum initial and variation margin requirements.
(ii) Comparability
The entities described in clause (i) shall, to the maximum extent practicable, establish and maintain comparable minimum capital requirements and minimum initial and variation margin requirements, including the use of non cash collateral, for—
(I) swap dealers; and
(II) major swap participants.
(4) Applicability with respect to counterparties
The requirements of paragraphs (2)(A)(ii) and (2)(B)(ii), including the initial and variation margin requirements imposed by rules adopted pursuant to paragraphs (2)(A)(ii) and (2)(B)(ii), shall not apply to a swap in which a counterparty qualifies for an exception under section 2(h)(7)(A) of this title, or an exemption issued under section 6(c)(1) of this title from the requirements of section 2(h)(1)(A) of this title for cooperative entities as defined in such exemption, or satisfies the criteria in section 2(h)(7)(D) of this title.
(f) Reporting and recordkeeping
(1) In general
Each registered swap dealer and major swap participant—
(A) shall make such reports as are required by the Commission by rule or regulation regarding the transactions and positions and financial condition of the registered swap dealer or major swap participant;
(B)(i) for which there is a prudential regulator, shall keep books and records of all activities related to the business as a swap dealer or major swap participant in such form and manner and for such period as may be prescribed by the Commission by rule or regulation; and
(ii) for which there is no prudential regulator, shall keep books and records in such form and manner and for such period as may be prescribed by the Commission by rule or regulation;
(C) shall keep books and records described in subparagraph (B) open to inspection and examination by any representative of the Commission; and
(D) shall keep any such books and records relating to swaps defined in section 1a(47)(A)(v) of this title open to inspection and examination by the Securities and Exchange Commission.
(2) Rules
The Commission shall adopt rules governing reporting and recordkeeping for swap dealers and major swap participants.
(g) Daily trading records
(1) In general
Each registered swap dealer and major swap participant shall maintain daily trading records of the swaps of the registered swap dealer and major swap participant and all related records (including related cash or forward transactions) and recorded communications, including electronic mail, instant messages, and recordings of telephone calls, for such period as may be required by the Commission by rule or regulation.
(2) Information requirements
The daily trading records shall include such information as the Commission shall require by rule or regulation.
(3) Counterparty records
Each registered swap dealer and major swap participant shall maintain daily trading records for each counterparty in a manner and form that is identifiable with each swap transaction.
(4) Audit trail
Each registered swap dealer and major swap participant shall maintain a complete audit trail for conducting comprehensive and accurate trade reconstructions.
(5) Rules
The Commission shall adopt rules governing daily trading records for swap dealers and major swap participants.
(h) Business conduct standards
(1) In general
Each registered swap dealer and major swap participant shall conform with such business conduct standards as prescribed in paragraph (3) and as may be prescribed by the Commission by rule or regulation that relate to—
(A) fraud, manipulation, and other abusive practices involving swaps (including swaps that are offered but not entered into);
(B) diligent supervision of the business of the registered swap dealer and major swap participant;
(C) adherence to all applicable position limits; and
(D) such other matters as the Commission determines to be appropriate.
(2) Responsibilities with respect to special entities
(A) Advising special entities
A swap dealer or major swap participant that acts as an advisor to a special entity regarding a swap shall comply with the requirements of subparagraph (4) with respect to such Special Entity.
(B) Entering of swaps with respect to special entities
A swap dealer that enters into or offers to enter into swap 2 with a Special Entity shall comply with the requirements of subparagraph (5) with respect to such Special Entity.
(C) Special entity defined
For purposes of this subsection, the term "special entity" means—
(i) a Federal agency;
(ii) a State, State agency, city, county, municipality, or other political subdivision of a State;
(iii) any employee benefit plan, as defined in section 3 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002);
(iv) any governmental plan, as defined in section 3 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002); or
(v) any endowment, including an endowment that is an organization described in section 501(c)(3) of title 26.
(3) Business conduct requirements
Business conduct requirements adopted by the Commission shall—
(A) establish a duty for a swap dealer or major swap participant to verify that any counterparty meets the eligibility standards for an eligible contract participant;
(B) require disclosure by the swap dealer or major swap participant to any counterparty to the transaction (other than a swap dealer, major swap participant, security-based swap dealer, or major security-based swap participant) of—
(i) information about the material risks and characteristics of the swap;
(ii) any material incentives or conflicts of interest that the swap dealer or major swap participant may have in connection with the swap; and
(iii)(I) for cleared swaps, upon the request of the counterparty, receipt of the daily mark of the transaction from the appropriate derivatives clearing organization; and
(II) for uncleared swaps, receipt of the daily mark of the transaction from the swap dealer or the major swap participant;
(C) establish a duty for a swap dealer or major swap participant to communicate in a fair and balanced manner based on principles of fair dealing and good faith; and
(D) establish such other standards and requirements as the Commission may determine are appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of this chapter.
(4) Special requirements for swap dealers acting as advisors
(A) In general
It shall be unlawful for a swap dealer or major swap participant—
(i) to employ any device, scheme, or artifice to defraud any Special Entity or prospective customer who is a Special Entity;
(ii) to engage in any transaction, practice, or course of business that operates as a fraud or deceit on any Special Entity or prospective customer who is a Special Entity; or
(iii) to engage in any act, practice, or course of business that is fraudulent, deceptive or manipulative.
(B) Duty
Any swap dealer that acts as an advisor to a Special Entity shall have a duty to act in the best interests of the Special Entity.
(C) Reasonable efforts
Any swap dealer that acts as an advisor to a Special Entity shall make reasonable efforts to obtain such information as is necessary to make a reasonable determination that any swap recommended by the swap dealer is in the best interests of the Special Entity, including information relating to—
(i) the financial status of the Special Entity;
(ii) the tax status of the Special Entity;
(iii) the investment or financing objectives of the Special Entity; and
(iv) any other information that the Commission may prescribe by rule or regulation.
(5) Special requirements for swap dealers as counterparties to special entities
(A) Any swap dealer or major swap participant that offers to enter or enters into a swap with a Special Entity shall—
(i) comply with any duty established by the Commission for a swap dealer or major swap participant, with respect to a counterparty that is an eligible contract participant within the meaning of subclause (I) or (II) of clause (vii) of section 1a(18) 3 of this title, that requires the swap dealer or major swap participant to have a reasonable basis to believe that the counterparty that is a Special Entity has an independent representative that—
(I) has sufficient knowledge to evaluate the transaction and risks;
(II) is not subject to a statutory disqualification;
(III) is independent of the swap dealer or major swap participant;
(IV) undertakes a duty to act in the best interests of the counterparty it represents;
(V) makes appropriate disclosures;
(VI) will provide written representations to the Special Entity regarding fair pricing and the appropriateness of the transaction; and
(VII) in the case of employee benefit plans subject to the Employee Retirement Income Security act 4 of 1974 [29 U.S.C. 1001 et seq.], is a fiduciary as defined in section 3 of that Act (29 U.S.C. 1002); and
(ii) before the initiation of the transaction, disclose to the Special Entity in writing the capacity in which the swap dealer is acting; and
(B) the Commission may establish such other standards and requirements as the Commission may determine are appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of this chapter.
(6) Rules
The Commission shall prescribe rules under this subsection governing business conduct standards for swap dealers and major swap participants.
(7) Applicability
This section shall not apply with respect to a transaction that is—
(A) initiated by a Special Entity on an exchange or swap execution facility; and
(B) one in which the swap dealer or major swap participant does not know the identity of the counterparty to the transaction.
(i) Documentation standards
(1) In general
Each registered swap dealer and major swap participant shall conform with such standards as may be prescribed by the Commission by rule or regulation that relate to timely and accurate confirmation, processing, netting, documentation, and valuation of all swaps.
(2) Rules
The Commission shall adopt rules governing documentation standards for swap dealers and major swap participants.
(j) Duties
Each registered swap dealer and major swap participant at all times shall comply with the following requirements:
(1) Monitoring of trading
The swap dealer or major swap participant shall monitor its trading in swaps to prevent violations of applicable position limits.
(2) Risk management procedures
The swap dealer or major swap participant shall establish robust and professional risk management systems adequate for managing the day-to-day business of the swap dealer or major swap participant.
(3) Disclosure of general information
The swap dealer or major swap participant shall disclose to the Commission and to the prudential regulator for the swap dealer or major swap participant, as applicable, information concerning—
(A) terms and conditions of its swaps;
(B) swap trading operations, mechanisms, and practices;
(C) financial integrity protections relating to swaps; and
(D) other information relevant to its trading in swaps.
(4) Ability to obtain information
The swap dealer or major swap participant shall—
(A) establish and enforce internal systems and procedures to obtain any necessary information to perform any of the functions described in this section; and
(B) provide the information to the Commission and to the prudential regulator for the swap dealer or major swap participant, as applicable, on request.
(5) Conflicts of interest
The swap dealer and major swap participant shall implement conflict-of-interest systems and procedures that—
(A) establish structural and institutional safeguards to ensure that the activities of any person within the firm relating to research or analysis of the price or market for any commodity or swap or acting in a role of providing clearing activities or making determinations as to accepting clearing customers are separated by appropriate informational partitions within the firm from the review, pressure, or oversight of persons whose involvement in pricing, trading, or clearing activities might potentially bias their judgment or supervision and contravene the core principles of open access and the business conduct standards described in this chapter; and
(B) address such other issues as the Commission determines to be appropriate.
(6) Antitrust considerations
Unless necessary or appropriate to achieve the purposes of this chapter, a swap dealer or major swap participant shall not—
(A) adopt any process or take any action that results in any unreasonable restraint of trade; or
(B) impose any material anticompetitive burden on trading or clearing.
(7) Rules
The Commission shall prescribe rules under this subsection governing duties of swap dealers and major swap participants.
(k) Designation of chief compliance officer
(1) In general
Each swap dealer and major swap participant shall designate an individual to serve as a chief compliance officer.
(2) Duties
The chief compliance officer shall—
(A) report directly to the board or to the senior officer of the swap dealer or major swap participant;
(B) review the compliance of the swap dealer or major swap participant with respect to the swap dealer and major swap participant requirements described in this section;
(C) in consultation with the board of directors, a body performing a function similar to the board, or the senior officer of the organization, resolve any conflicts of interest that may arise;
(D) be responsible for administering each policy and procedure that is required to be established pursuant to this section;
(E) ensure compliance with this chapter (including regulations) relating to swaps, including each rule prescribed by the Commission under this section;
(F) establish procedures for the remediation of noncompliance issues identified by the chief compliance officer through any—
(i) compliance office review;
(ii) look-back;
(iii) internal or external audit finding;
(iv) self-reported error; or
(v) validated complaint; and
(G) establish and follow appropriate procedures for the handling, management response, remediation, retesting, and closing of noncompliance issues.
(3) Annual reports
(A) In general
In accordance with rules prescribed by the Commission, the chief compliance officer shall annually prepare and sign a report that contains a description of—
(i) the compliance of the swap dealer or major swap participant with respect to this chapter (including regulations); and
(ii) each policy and procedure of the swap dealer or major swap participant of the chief compliance officer (including the code of ethics and conflict of interest policies).
(B) Requirements
A compliance report under subparagraph (A) shall—
(i) accompany each appropriate financial report of the swap dealer or major swap participant that is required to be furnished to the Commission pursuant to this section; and
(ii) include a certification that, under penalty of law, the compliance report is accurate and complete.
(l) Segregation requirements
(1) Segregation of assets held as collateral in uncleared swap transactions
(A) Notification
A swap dealer or major swap participant shall be required to notify the counterparty of the swap dealer or major swap participant at the beginning of a swap transaction that the counterparty has the right to require segregation of the funds or other property supplied to margin, guarantee, or secure the obligations of the counterparty.
(B) Segregation and maintenance of funds
At the request of a counterparty to a swap that provides funds or other property to a swap dealer or major swap participant to margin, guarantee, or secure the obligations of the counterparty, the swap dealer or major swap participant shall—
(i) segregate the funds or other property for the benefit of the counterparty; and
(ii) in accordance with such rules and regulations as the Commission may promulgate, maintain the funds or other property in a segregated account separate from the assets and other interests of the swap dealer or major swap participant.
(2) Applicability
The requirements described in paragraph (1) shall—
(A) apply only to a swap between a counterparty and a swap dealer or major swap participant that is not submitted for clearing to a derivatives clearing organization; and
(B)(i) not apply to variation margin payments; or
(ii) not preclude any commercial arrangement regarding—
(I) the investment of segregated funds or other property that may only be invested in such investments as the Commission may permit by rule or regulation; and
(II) the related allocation of gains and losses resulting from any investment of the segregated funds or other property.
(3) Use of independent third-party custodians
The segregated account described in paragraph (1) shall be—
(A) carried by an independent third-party custodian; and
(B) designated as a segregated account for and on behalf of the counterparty.
(4) Reporting requirement
If the counterparty does not choose to require segregation of the funds or other property supplied to margin, guarantee, or secure the obligations of the counterparty, the swap dealer or major swap participant shall report to the counterparty of the swap dealer or major swap participant on a quarterly basis that the back office procedures of the swap dealer or major swap participant relating to margin and collateral requirements are in compliance with the agreement of the counterparties.
(Sept. 21, 1922, ch. 369, §4s, as added and amended Pub. L. 111–203, title VII, §§724(c), 731, July 21, 2010, 124 Stat. 1684, 1703; Pub. L. 114–1, title III, §302(a), Jan. 12, 2015, 129 Stat. 28.)
Editorial Notes
References in Text
The Securities Exchange Act of 1934, referred to in subsec. (e)(3)(B)(ii), is act June 6, 1934, ch. 404, 48 Stat. 881, which is classified principally to chapter 2B (§78a et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 78a of Title 15 and Tables.
The Employee Retirement Income Security Act of 1974, referred to in subsec. (h)(5)(A)(i)(VII), is Pub. L. 93–406, Sept. 2, 1974, 88 Stat. 829, which is classified principally to chapter 18 (§1001 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 1001 of Title 29 and Tables.
Amendments
2015—Subsec. (e)(4). Pub. L. 114–1 added par. (4).
2010—Subsec. (l). Pub. L. 111–203, §724(c), added subsec. (l).
Statutory Notes and Related Subsidiaries
Effective Date
Section and amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as an Effective Date of 2010 Amendment note under section 1a of this title.
Implementation
Pub. L. 114–1, title III, §303, Jan. 12, 2015, 129 Stat. 28, provided that: "The amendments made by this title to the Commodity Exchange Act [amending this section] shall be implemented—
"(1) without regard to—
"(A) chapter 35 of title 44, United States Code; and
"(B) the notice and comment provisions of section 553 of title 5, United States Code;
"(2) through the promulgation of an interim final rule, pursuant to which public comment will be sought before a final rule is issued; and
"(3) such that paragraph (1) shall apply solely to changes to rules and regulations, or proposed rules and regulations, that are limited to and directly a consequence of such amendments."
1 So in original. Probably should be followed by a third closing parenthesis.
2 So in original. Probably should be preceded by "a".
3 So in original. Probably should be "section 1a(18)(A)".
4 So in original. Probably should be "Act".
§6t. Large swap trader reporting
(a) Prohibition
(1) In general
Except as provided in paragraph (2), it shall be unlawful for any person to enter into any swap that the Commission determines to perform a significant price discovery function with respect to registered entities if—
(A) the person directly or indirectly enters into the swap during any 1 day in an amount equal to or in excess of such amount as shall be established periodically by the Commission; and
(B) the person directly or indirectly has or obtains a position in the swap equal to or in excess of such amount as shall be established periodically by the Commission.
(2) Exception
Paragraph (1) shall not apply if—
(A) the person files or causes to be filed with the properly designated officer of the Commission such reports regarding any transactions or positions described in subparagraphs (A) and (B) of paragraph (1) as the Commission may require by rule or regulation; and
(B) in accordance with the rules and regulations of the Commission, the person keeps books and records of all such swaps and any transactions and positions in any related commodity traded on or subject to the rules of any designated contract market or swap execution facility, and of cash or spot transactions in, inventories of, and purchase and sale commitments of, such a commodity.
(b) Requirements
(1) In general
Books and records described in subsection (a)(2)(B) shall—
(A) show such complete details concerning all transactions and positions as the Commission may prescribe by rule or regulation;
(B) be open at all times to inspection and examination by any representative of the Commission; and
(C) be open at all times to inspection and examination by the Securities and Exchange Commission, to the extent such books and records relate to transactions in swaps (as that term is defined in section 1a(47)(A)(v) of this title), and consistent with the confidentiality and disclosure requirements of section 12 of this title.
(2) Jurisdiction
Nothing in paragraph (1) shall affect the exclusive jurisdiction of the Commission to prescribe recordkeeping and reporting requirements for large swap traders under this section.
(c) Applicability
For purposes of this section, the swaps, futures, and cash or spot transactions and positions of any person shall include the swaps, futures, and cash or spot transactions and positions of any persons directly or indirectly controlled by the person.
(d) Significant price discovery function
In making a determination as to whether a swap performs or affects a significant price discovery function with respect to registered entities, the Commission shall consider the factors described in section 6a(a)(3) of this title.
(Sept. 21, 1922, ch. 369, §4t, as added Pub. L. 111–203, title VII, §730, July 21, 2010, 124 Stat. 1702.)
Statutory Notes and Related Subsidiaries
Effective Date
Section effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as an Effective Date of 2010 Amendment note under section 1a of this title.
§7. Designation of boards of trade as contract markets
(a) Applications
A board of trade applying to the Commission for designation as a contract market shall submit an application to the Commission that includes any relevant materials and records the Commission may require consistent with this chapter.
(b) Repealed. Pub. L. 111–203, title VII, §735(a), July 21, 2010, 124 Stat. 1718
(c) Existing contract markets
A board of trade that is designated as a contract market on December 21, 2000, shall be considered to be a designated contract market under this section.
(d) Core principles for contract markets
(1) Designation as contract market
(A) In general
To be designated, and maintain a designation, as a contract market, a board of trade shall comply with—
(i) any core principle described in this subsection; and
(ii) any requirement that the Commission may impose by rule or regulation pursuant to section 12a(5) of this title.
(B) Reasonable discretion of contract market
Unless otherwise determined by the Commission by rule or regulation, a board of trade described in subparagraph (A) shall have reasonable discretion in establishing the manner in which the board of trade complies with the core principles described in this subsection.
(2) Compliance with rules
(A) In general
The board of trade shall establish, monitor, and enforce compliance with the rules of the contract market, including—
(i) access requirements;
(ii) the terms and conditions of any contracts to be traded on the contract market; and
(iii) rules prohibiting abusive trade practices on the contract market.
(B) Capacity of contract market
The board of trade shall have the capacity to detect, investigate, and apply appropriate sanctions to any person that violates any rule of the contract market.
(C) Requirement of rules
The rules of the contract market shall provide the board of trade with the ability and authority to obtain any necessary information to perform any function described in this subsection, including the capacity to carry out such international information-sharing agreements as the Commission may require.
(3) Contracts not readily subject to manipulation
The board of trade shall list on the contract market only contracts that are not readily susceptible to manipulation.
(4) Prevention of market disruption
The board of trade shall have the capacity and responsibility to prevent manipulation, price distortion, and disruptions of the delivery or cash-settlement process through market surveillance, compliance, and enforcement practices and procedures, including—
(A) methods for conducting real-time monitoring of trading; and
(B) comprehensive and accurate trade reconstructions.
(5) Position limitations or accountability
(A) In general
To reduce the potential threat of market manipulation or congestion (especially during trading in the delivery month), the board of trade shall adopt for each contract of the board of trade, as is necessary and appropriate, position limitations or position accountability for speculators.
(B) Maximum allowable position limitation
For any contract that is subject to a position limitation established by the Commission pursuant to section 6a(a) of this title, the board of trade shall set the position limitation of the board of trade at a level not higher than the position limitation established by the Commission.
(6) Emergency authority
The board of trade, in consultation or cooperation with the Commission, shall adopt rules to provide for the exercise of emergency authority, as is necessary and appropriate, including the authority—
(A) to liquidate or transfer open positions in any contract;
(B) to suspend or curtail trading in any contract; and
(C) to require market participants in any contract to meet special margin requirements.
(7) Availability of general information
The board of trade shall make available to market authorities, market participants, and the public accurate information concerning—
(A) the terms and conditions of the contracts of the contract market; and
(B)(i) the rules, regulations, and mechanisms for executing transactions on or through the facilities of the contract market; and
(ii) the rules and specifications describing the operation of the contract market's—
(I) electronic matching platform; or
(II) trade execution facility.
(8) Daily publication of trading information
The board of trade shall make public daily information on settlement prices, volume, open interest, and opening and closing ranges for actively traded contracts on the contract market.
(9) Execution of transactions
(A) In general
The board of trade shall provide a competitive, open, and efficient market and mechanism for executing transactions that protects the price discovery process of trading in the centralized market of the board of trade.
(B) Rules
The rules of the board of trade may authorize, for bona fide business purposes—
(i) transfer trades or office trades;
(ii) an exchange of—
(I) futures in connection with a cash commodity transaction;
(II) futures for cash commodities; or
(III) futures for swaps; or
(iii) a futures commission merchant, acting as principal or agent, to enter into or confirm the execution of a contract for the purchase or sale of a commodity for future delivery if the contract is reported, recorded, or cleared in accordance with the rules of the contract market or a derivatives clearing organization.
(10) Trade information
The board of trade shall maintain rules and procedures to provide for the recording and safe storage of all identifying trade information in a manner that enables the contract market to use the information—
(A) to assist in the prevention of customer and market abuses; and
(B) to provide evidence of any violations of the rules of the contract market.
(11) Financial integrity of transactions
The board of trade shall establish and enforce—
(A) rules and procedures for ensuring the financial integrity of transactions entered into on or through the facilities of the contract market (including the clearance and settlement of the transactions with a derivatives clearing organization); and
(B) rules to ensure—
(i) the financial integrity of any—
(I) futures commission merchant; and
(II) introducing broker; and
(ii) the protection of customer funds.
(12) Protection of markets and market participants
The board of trade shall establish and enforce rules—
(A) to protect markets and market participants from abusive practices committed by any party, including abusive practices committed by a party acting as an agent for a participant; and
(B) to promote fair and equitable trading on the contract market.
(13) Disciplinary procedures
The board of trade shall establish and enforce disciplinary procedures that authorize the board of trade to discipline, suspend, or expel members or market participants that violate the rules of the board of trade, or similar methods for performing the same functions, including delegation of the functions to third parties.
(14) Dispute resolution
The board of trade shall establish and enforce rules regarding, and provide facilities for alternative dispute resolution as appropriate for, market participants and any market intermediaries.
(15) Governance fitness standards
The board of trade shall establish and enforce appropriate fitness standards for directors, members of any disciplinary committee, members of the contract market, and any other person with direct access to the facility (including any party affiliated with any person described in this paragraph).
(16) Conflicts of interest
The board of trade shall establish and enforce rules—
(A) to minimize conflicts of interest in the decision-making process of the contract market; and
(B) to establish a process for resolving conflicts of interest described in subparagraph (A).
(17) Composition of governing boards of contract markets
The governance arrangements of the board of trade shall be designed to permit consideration of the views of market participants.
(18) Recordkeeping
The board of trade shall maintain records of all activities relating to the business of the contract market—
(A) in a form and manner that is acceptable to the Commission; and
(B) for a period of at least 5 years.
(19) Antitrust considerations
Unless necessary or appropriate to achieve the purposes of this chapter, the board of trade shall not—
(A) adopt any rule or taking 1 any action that results in any unreasonable restraint of trade; or
(B) impose any material anticompetitive burden on trading on the contract market.
(20) System safeguards
The board of trade shall—
(A) establish and maintain a program of risk analysis and oversight to identify and minimize sources of operational risk, through the development of appropriate controls and procedures, and the development of automated systems, that are reliable, secure, and have adequate scalable capacity;
(B) establish and maintain emergency procedures, backup facilities, and a plan for disaster recovery that allow for the timely recovery and resumption of operations and the fulfillment of the responsibilities and obligations of the board of trade; and
(C) periodically conduct tests to verify that backup resources are sufficient to ensure continued order processing and trade matching, price reporting, market surveillance, and maintenance of a comprehensive and accurate audit trail.
(21) Financial resources
(A) In general
The board of trade shall have adequate financial, operational, and managerial resources to discharge each responsibility of the board of trade.
(B) Determination of adequacy
The financial resources of the board of trade shall be considered to be adequate if the value of the financial resources exceeds the total amount that would enable the contract market to cover the operating costs of the contract market for a 1-year period, as calculated on a rolling basis.
(22) Diversity of board of directors
The board of trade, if a publicly traded company, shall endeavor to recruit individuals to serve on the board of directors and the other decision-making bodies (as determined by the Commission) of the board of trade from among, and to have the composition of the bodies reflect, a broad and culturally diverse pool of qualified candidates.
(23) Securities and Exchange Commission
The board of trade shall keep any such records relating to swaps defined in section 1a(47)(A)(v) of this title open to inspection and examination by the Securities and Exchange Commission.
(e) Current agricultural commodities
(1) Subject to paragraph (2) of this subsection, a contract for purchase or sale for future delivery of an agricultural commodity enumerated in section 1a(9) of this title that is available for trade on a contract market, as of December 21, 2000, may be traded only on a contract market designated under this section.
(2) In order to promote responsible economic or financial innovation and fair competition, the Commission, on application by any person, after notice and public comment and opportunity for hearing, may prescribe rules and regulations to provide for the offer and sale of contracts for future delivery or options on such contracts to be conducted on a derivatives transaction execution facility.
(Sept. 21, 1922, ch. 369, §5, as added Pub. L. 106–554, §1(a)(5) [title I, §110(2)], Dec. 21, 2000, 114 Stat. 2763, 2763A-384; amended Pub. L. 111–203, title VII, §§721(e)(4), 735, July 21, 2010, 124 Stat. 1671, 1718.)
Editorial Notes
Prior Provisions
A prior section 7, acts Sept. 21, 1922, ch. 369, §5, 42 Stat. 1000; June 15, 1936, ch. 545, §§2, 6, 49 Stat. 1491, 1497; Pub. L. 90–258, §§10, 11, Feb. 19, 1968, 82 Stat. 29; Pub. L. 93–463, title I, §103(a), (f), (g), title II, §207, Oct. 23, 1974, 88 Stat. 1392, 1400; Pub. L. 102–546, title II, §§201(c), 209(b)(2), Oct. 28, 1992, 106 Stat. 3597, 3606, related to conditions and requirements for designation of boards of trade as contract markets, prior to repeal by Pub. L. 106–554, §1(a)(5) [title I, §110(2)], Dec. 21, 2000, 114 Stat. 2763, 2763A-384.
Amendments
2010—Subsec. (b). Pub. L. 111–203, §735(a), struck out subsec. (b) which related to criteria for designation as a contract market.
Subsec. (d). Pub. L. 111–203, §735(b), added subsec. (d) and struck out former subsec. (d) which related to core principles for contract markets.
Subsec. (e)(1). Pub. L. 111–203, §721(e)(4), substituted "section 1a(9)" for "section 1a(4)".
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
1 So in original. Probably should be "take".
§7a. Repealed. Pub. L. 111–203, title VII, §734(a), July 21, 2010, 124 Stat. 1718
Section, act Sept. 21, 1922, ch. 369, §5a, as added Pub. L. 106–554, §1(a)(5) [title I, §111], Dec. 21, 2000, 114 Stat. 2763, 2763A-387; amended Pub. L. 110–234, title XIII, §13203(h), May 22, 2008, 122 Stat. 1440; Pub. L. 110–246, §4(a), title XIII, §13203(h), June 18, 2008, 122 Stat. 1664, 2202; Pub. L. 111–203, title VII, §721(e)(5), July 21, 2010, 124 Stat. 1671, related to derivatives transaction execution facilities.
A prior section 7a, act Sept. 21, 1922, ch. 369, §5a, as added June 15, 1936, ch. 545, §7, 49 Stat. 1497; amended Pub. L. 90–258, §12, Feb. 19, 1968, 82 Stat. 29; Pub. L. 93–463, title I, §103(a), (e), (f), title II, §§208–210, title IV, §§406, 407, Oct. 23, 1974, 88 Stat. 1392, 1400, 1401, 1413; Pub. L. 95–405, §§11, 12, Sept. 30, 1978, 92 Stat. 870, 871; Pub. L. 97–444, title II, §§216, 217(a), Jan. 11, 1983, 96 Stat. 2306, 2307; Pub. L. 99–641, title I, §110(2), Nov. 10, 1986, 100 Stat. 3561; Pub. L. 102–546, title I, §103, title II, §§201(a), 206(a)(1), 213(a), 217, 222(a), Oct. 28, 1992, 106 Stat. 3594, 3595, 3601, 3609, 3611, 3615, related to duties of contract markets prior to repeal by Pub. L. 106–554, §1(a)(5) [title I, §110(2)], Dec. 21, 2000, 114 Stat. 2763, 2763A-384.
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as an Effective Date of 2010 Amendment note under section 1a of this title.
§7a–1. Derivatives clearing organizations
(a) Registration requirement
(1) In general
Except as provided in paragraph (2), it shall be unlawful for a derivatives clearing organization, directly or indirectly, to make use of the mails or any means or instrumentality of interstate commerce to perform the functions of a derivatives clearing organization with respect to—
(A) a contract of sale of a commodity for future delivery (or an option on the contract of sale) or option on a commodity, in each case, unless the contract or option is—
(i) excluded from this chapter by subsection (a)(1)(C)(i), (c), or (f) of section 2 of this title; or
(ii) a security futures product cleared by a clearing agency registered with the Securities and Exchange Commission under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.); or
(B) a swap.
(2) Exception
Paragraph (1) shall not apply to a derivatives clearing organization that is registered with the Commission.
(b) Voluntary registration
A person that clears 1 or more agreements, contracts, or transactions that are not required to be cleared under this chapter may register with the Commission as a derivatives clearing organization.
(c) Registration of derivatives clearing organizations
(1) Application
A person desiring to register as a derivatives clearing organization shall submit to the Commission an application in such form and containing such information as the Commission may require for the purpose of making the determinations required for approval under paragraph (2).
(2) Core principles for derivatives clearing organizations
(A) Compliance
(i) In general
To be registered and to maintain registration as a derivatives clearing organization, a derivatives clearing organization shall comply with each core principle described in this paragraph and any requirement that the Commission may impose by rule or regulation pursuant to section 12a(5) of this title.
(ii) Discretion of derivatives clearing organization
Subject to any rule or regulation prescribed by the Commission, a derivatives clearing organization shall have reasonable discretion in establishing the manner by which the derivatives clearing organization complies with each core principle described in this paragraph.
(B) Financial resources
(i) In general
Each derivatives clearing organization shall have adequate financial, operational, and managerial resources, as determined by the Commission, to discharge each responsibility of the derivatives clearing organization.
(ii) Minimum amount of financial resources
Each derivatives clearing organization shall possess financial resources that, at a minimum, exceed the total amount that would—
(I) enable the organization to meet its financial obligations to its members and participants notwithstanding a default by the member or participant creating the largest financial exposure for that organization in extreme but plausible market conditions; and
(II) enable the derivatives clearing organization to cover the operating costs of the derivatives clearing organization for a period of 1 year (as calculated on a rolling basis).
(C) Participant and product eligibility
(i) In general
Each derivatives clearing organization shall establish—
(I) appropriate admission and continuing eligibility standards (including sufficient financial resources and operational capacity to meet obligations arising from participation in the derivatives clearing organization) for members of, and participants in, the derivatives clearing organization; and
(II) appropriate standards for determining the eligibility of agreements, contracts, or transactions submitted to the derivatives clearing organization for clearing.
(ii) Required procedures
Each derivatives clearing organization shall establish and implement procedures to verify, on an ongoing basis, the compliance of each participation and membership requirement of the derivatives clearing organization.
(iii) Requirements
The participation and membership requirements of each derivatives clearing organization shall—
(I) be objective;
(II) be publicly disclosed; and
(III) permit fair and open access.
(D) Risk management
(i) In general
Each derivatives clearing organization shall ensure that the derivatives clearing organization possesses the ability to manage the risks associated with discharging the responsibilities of the derivatives clearing organization through the use of appropriate tools and procedures.
(ii) Measurement of credit exposure
Each derivatives clearing organization shall—
(I) not less than once during each business day of the derivatives clearing organization, measure the credit exposures of the derivatives clearing organization to each member and participant of the derivatives clearing organization; and
(II) monitor each exposure described in subclause (I) periodically during the business day of the derivatives clearing organization.
(iii) Limitation of exposure to potential losses from defaults
Each derivatives clearing organization, through margin requirements and other risk control mechanisms, shall limit the exposure of the derivatives clearing organization to potential losses from defaults by members and participants of the derivatives clearing organization to ensure that—
(I) the operations of the derivatives clearing organization would not be disrupted; and
(II) nondefaulting members or participants would not be exposed to losses that nondefaulting members or participants cannot anticipate or control.
(iv) Margin requirements
The margin required from each member and participant of a derivatives clearing organization shall be sufficient to cover potential exposures in normal market conditions.
(v) Requirements regarding models and parameters
Each model and parameter used in setting margin requirements under clause (iv) shall be—
(I) risk-based; and
(II) reviewed on a regular basis.
(E) Settlement procedures
Each derivatives clearing organization shall—
(i) complete money settlements on a timely basis (but not less frequently than once each business day);
(ii) employ money settlement arrangements to eliminate or strictly limit the exposure of the derivatives clearing organization to settlement bank risks (including credit and liquidity risks from the use of banks to effect money settlements);
(iii) ensure that money settlements are final when effected;
(iv) maintain an accurate record of the flow of funds associated with each money settlement;
(v) possess the ability to comply with each term and condition of any permitted netting or offset arrangement with any other clearing organization;
(vi) regarding physical settlements, establish rules that clearly state each obligation of the derivatives clearing organization with respect to physical deliveries; and
(vii) ensure that each risk arising from an obligation described in clause (vi) is identified and managed.
(F) Treatment of funds
(i) Required standards and procedures
Each derivatives clearing organization shall establish standards and procedures that are designed to protect and ensure the safety of member and participant funds and assets.
(ii) Holding of funds and assets
Each derivatives clearing organization shall hold member and participant funds and assets in a manner by which to minimize the risk of loss or of delay in the access by the derivatives clearing organization to the assets and funds.
(iii) Permissible investments
Funds and assets invested by a derivatives clearing organization shall be held in instruments with minimal credit, market, and liquidity risks.
(G) Default rules and procedures
(i) In general
Each derivatives clearing organization shall have rules and procedures designed to allow for the efficient, fair, and safe management of events during which members or participants—
(I) become insolvent; or
(II) otherwise default on the obligations of the members or participants to the derivatives clearing organization.
(ii) Default procedures
Each derivatives clearing organization shall—
(I) clearly state the default procedures of the derivatives clearing organization;
(II) make publicly available the default rules of the derivatives clearing organization; and
(III) ensure that the derivatives clearing organization may take timely action—
(aa) to contain losses and liquidity pressures; and
(bb) to continue meeting each obligation of the derivatives clearing organization.
(H) Rule enforcement
Each derivatives clearing organization shall—
(i) maintain adequate arrangements and resources for—
(I) the effective monitoring and enforcement of compliance with the rules of the derivatives clearing organization; and
(II) the resolution of disputes;
(ii) have the authority and ability to discipline, limit, suspend, or terminate the activities of a member or participant due to a violation by the member or participant of any rule of the derivatives clearing organization; and
(iii) report to the Commission regarding rule enforcement activities and sanctions imposed against members and participants as provided in clause (ii).
(I) System safeguards
Each derivatives clearing organization shall—
(i) establish and maintain a program of risk analysis and oversight to identify and minimize sources of operational risk through the development of appropriate controls and procedures, and automated systems, that are reliable, secure, and have adequate scalable capacity;
(ii) establish and maintain emergency procedures, backup facilities, and a plan for disaster recovery that allows for—
(I) the timely recovery and resumption of operations of the derivatives clearing organization; and
(II) the fulfillment of each obligation and responsibility of the derivatives clearing organization; and
(iii) periodically conduct tests to verify that the backup resources of the derivatives clearing organization are sufficient to ensure daily processing, clearing, and settlement.
(J) Reporting
Each derivatives clearing organization shall provide to the Commission all information that the Commission determines to be necessary to conduct oversight of the derivatives clearing organization.
(K) Recordkeeping
Each derivatives clearing organization shall maintain records of all activities related to the business of the derivatives clearing organization as a derivatives clearing organization—
(i) in a form and manner that is acceptable to the Commission; and
(ii) for a period of not less than 5 years.
(L) Public information
(i) In general
Each derivatives clearing organization shall provide to market participants sufficient information to enable the market participants to identify and evaluate accurately the risks and costs associated with using the services of the derivatives clearing organization.
(ii) Availability of information
Each derivatives clearing organization shall make information concerning the rules and operating and default procedures governing the clearing and settlement systems of the derivatives clearing organization available to market participants.
(iii) Public disclosure
Each derivatives clearing organization shall disclose publicly and to the Commission information concerning—
(I) the terms and conditions of each contract, agreement, and transaction cleared and settled by the derivatives clearing organization;
(II) each clearing and other fee that the derivatives clearing organization charges the members and participants of the derivatives clearing organization;
(III) the margin-setting methodology, and the size and composition, of the financial resource package of the derivatives clearing organization;
(IV) daily settlement prices, volume, and open interest for each contract settled or cleared by the derivatives clearing organization; and
(V) any other matter relevant to participation in the settlement and clearing activities of the derivatives clearing organization.
(M) Information-sharing
Each derivatives clearing organization shall—
(i) enter into, and abide by the terms of, each appropriate and applicable domestic and international information-sharing agreement; and
(ii) use relevant information obtained from each agreement described in clause (i) in carrying out the risk management program of the derivatives clearing organization.
(N) Antitrust considerations
Unless necessary or appropriate to achieve the purposes of this chapter, a derivatives clearing organization shall not—
(i) adopt any rule or take any action that results in any unreasonable restraint of trade; or
(ii) impose any material anticompetitive burden.
(O) Governance fitness standards
(i) Governance arrangements
Each derivatives clearing organization shall establish governance arrangements that are transparent—
(I) to fulfill public interest requirements; and
(II) to permit the consideration of the views of owners and participants.
(ii) Fitness standards
Each derivatives clearing organization shall establish and enforce appropriate fitness standards for—
(I) directors;
(II) members of any disciplinary committee;
(III) members of the derivatives clearing organization;
(IV) any other individual or entity with direct access to the settlement or clearing activities of the derivatives clearing organization; and
(V) any party affiliated with any individual or entity described in this clause.
(P) Conflicts of interest
Each derivatives clearing organization shall—
(i) establish and enforce rules to minimize conflicts of interest in the decision-making process of the derivatives clearing organization; and
(ii) establish a process for resolving conflicts of interest described in clause (i).
(Q) Composition of governing boards
Each derivatives clearing organization shall ensure that the composition of the governing board or committee of the derivatives clearing organization includes market participants.
(R) Legal risk
Each derivatives clearing organization shall have a well-founded, transparent, and enforceable legal framework for each aspect of the activities of the derivatives clearing organization.
(3) Orders concerning competition
A derivatives clearing organization may request the Commission to issue an order concerning whether a rule or practice of the applicant is the least anticompetitive means of achieving the objectives, purposes, and policies of this chapter.
(d) Existing derivatives clearing organizations
A derivatives clearing organization shall be deemed to be registered under this section to the extent that the derivatives clearing organization clears agreements, contracts, or transactions for a board of trade that has been designated by the Commission as a contract market for such agreements, contracts, or transactions before December 21, 2000.
(e) Appointment of trustee
(1) In general
If a proceeding under section 7b of this title results in the suspension or revocation of the registration of a derivatives clearing organization, or if a derivatives clearing organization withdraws from registration, the Commission, on notice to the derivatives clearing organization, may apply to the appropriate United States district court where the derivatives clearing organization is located for the appointment of a trustee.
(2) Assumption of jurisdiction
If the Commission applies for appointment of a trustee under paragraph (1)—
(A) the court may take exclusive jurisdiction over the derivatives clearing organization and the records and assets of the derivatives clearing organization, wherever located; and
(B) if the court takes jurisdiction under subparagraph (A), the court shall appoint the Commission, or a person designated by the Commission, as trustee with power to take possession and continue to operate or terminate the operations of the derivatives clearing organization in an orderly manner for the protection of participants, subject to such terms and conditions as the court may prescribe.
(f) Linking of regulated clearing facilities
(1) In general
The Commission shall facilitate the linking or coordination of derivatives clearing organizations registered under this chapter with other regulated clearance facilities for the coordinated settlement of cleared transactions. In order to minimize systemic risk, under no circumstances shall a derivatives clearing organization be compelled to accept the counterparty credit risk of another clearing organization.
(2) Coordination
In carrying out paragraph (1), the Commission shall coordinate with the Federal banking agencies and the Securities and Exchange Commission.
(g) Existing depository institutions and clearing agencies
(1) In general
A depository institution or clearing agency registered with the Securities and Exchange Commission under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) that is required to be registered as a derivatives clearing organization under this section is deemed to be registered under this section to the extent that, before July 21, 2010—
(A) the depository institution cleared swaps as a multilateral clearing organization; or
(B) the clearing agency cleared swaps.
(2) Conversion of depository institutions
A depository institution to which this subsection applies may, by the vote of the shareholders owning not less than 51 percent of the voting interests of the depository institution, be converted into a State corporation, partnership, limited liability company, or similar legal form pursuant to a plan of conversion, if the conversion is not in contravention of applicable State law.
(3) Sharing of information
The Securities and Exchange Commission shall make available to the Commission, upon request, all information determined to be relevant by the Securities and Exchange Commission regarding a clearing agency deemed to be registered with the Commission under paragraph (1).
(h) Exemptions
The Commission may exempt, conditionally or unconditionally, a derivatives clearing organization from registration under this section for the clearing of swaps if the Commission determines that the derivatives clearing organization is subject to comparable, comprehensive supervision and regulation by the Securities and Exchange Commission or the appropriate government authorities in the home country of the organization. Such conditions may include, but are not limited to, requiring that the derivatives clearing organization be available for inspection by the Commission and make available all information requested by the Commission.
(i) Designation of chief compliance officer
(1) In general
Each derivatives clearing organization shall designate an individual to serve as a chief compliance officer.
(2) Duties
The chief compliance officer shall—
(A) report directly to the board or to the senior officer of the derivatives clearing organization;
(B) review the compliance of the derivatives clearing organization with respect to the core principles described in subsection (c)(2);
(C) in consultation with the board of the derivatives clearing organization, a body performing a function similar to the board of the derivatives clearing organization, or the senior officer of the derivatives clearing organization, resolve any conflicts of interest that may arise;
(D) be responsible for administering each policy and procedure that is required to be established pursuant to this section;
(E) ensure compliance with this chapter (including regulations) relating to agreements, contracts, or transactions, including each rule prescribed by the Commission under this section;
(F) establish procedures for the remediation of noncompliance issues identified by the compliance officer through any—
(i) compliance office review;
(ii) look-back;
(iii) internal or external audit finding;
(iv) self-reported error; or
(v) validated complaint; and
(G) establish and follow appropriate procedures for the handling, management response, remediation, retesting, and closing of noncompliance issues.
(3) Annual reports
(A) In general
In accordance with rules prescribed by the Commission, the chief compliance officer shall annually prepare and sign a report that contains a description of—
(i) the compliance of the derivatives clearing organization of the compliance officer with respect to this chapter (including regulations); and
(ii) each policy and procedure of the derivatives clearing organization of the compliance officer (including the code of ethics and conflict of interest policies of the derivatives clearing organization).
(B) Requirements
A compliance report under subparagraph (A) shall—
(i) accompany each appropriate financial report of the derivatives clearing organization that is required to be furnished to the Commission pursuant to this section; and
(ii) include a certification that, under penalty of law, the compliance report is accurate and complete.
(k) 1 Reporting requirements
(1) Duty of derivatives clearing organizations
Each derivatives clearing organization that clears swaps shall provide to the Commission all information that is determined by the Commission to be necessary to perform each responsibility of the Commission under this chapter.
(2) Data collection and maintenance requirements
The Commission shall adopt data collection and maintenance requirements for swaps cleared by derivatives clearing organizations that are comparable to the corresponding requirements for—
(A) swaps data reported to swap data repositories; and
(B) swaps traded on swap execution facilities.
(3) Reports on security-based swap agreements to be shared with the Securities and Exchange Commission
(A) In general
A derivatives clearing organization that clears security-based swap agreements (as defined in section 1a(47)(A)(v) of this title) shall, upon request, open to inspection and examination to the Securities and Exchange Commission all books and records relating to such security-based swap agreements, consistent with the confidentiality and disclosure requirements of section 12 of this title.
(B) Jurisdiction
Nothing in this paragraph shall affect the exclusive jurisdiction of the Commission to prescribe recordkeeping and reporting requirements for a derivatives clearing organization that is registered with the Commission.
(4) Information sharing
Subject to section 12 of this title, and upon request, the Commission shall share information collected under paragraph (2) with—
(A) the Board;
(B) the Securities and Exchange Commission;
(C) each appropriate prudential regulator;
(D) the Financial Stability Oversight Council;
(E) the Department of Justice; and
(F) any other person that the Commission determines to be appropriate, including—
(i) foreign financial supervisors (including foreign futures authorities);
(ii) foreign central banks; and
(iii) foreign ministries.
(5) Confidentiality agreement
Before the Commission may share information with any entity described in paragraph (4), the Commission shall receive a written agreement from each entity stating that the entity shall abide by the confidentiality requirements described in section 12 of this title relating to the information on swap transactions that is provided.
(6) Public information
Each derivatives clearing organization that clears swaps shall provide to the Commission (including any designee of the Commission) information under paragraph (2) in such form and at such frequency as is required by the Commission to comply with the public reporting requirements contained in section 2(a)(13) of this title.
(Sept. 21, 1922, ch. 369, §5b, as added Pub. L. 106–554, §1(a)(5) [title I, §112(f)], Dec. 21, 2000, 114 Stat. 2763, 2763A-396; amended Pub. L. 111–203, title VII, §§721(e)(6), 725(a)–(c), (e), (h), July 21, 2010, 124 Stat. 1671, 1685-1687, 1693, 1695; Pub. L. 114–94, div. G, title LXXXVI, §86001(a), Dec. 4, 2015, 129 Stat. 1797.)
Editorial Notes
References in Text
The Securities Exchange Act of 1934, referred to in subsecs. (a)(1)(A)(ii) and (g)(1), is act June 6, 1934, ch. 404, 48 Stat. 881, which is classified principally to chapter 2B (§78a et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 78a of Title 15 and Tables.
Prior Provisions
A prior section 5b of act Sept. 21, 1922, was renumbered section 5e, and is classified to section 7b of this title.
Amendments
2015—Subsec. (k)(5). Pub. L. 114–94 amended par. (5) generally. Prior to amendment, text read as follows: "Before the Commission may share information with any entity described in paragraph (4)—
"(A) the Commission shall receive a written agreement from each entity stating that the entity shall abide by the confidentiality requirements described in section 12 of this title relating to the information on swap transactions that is provided; and
"(B) each entity shall agree to indemnify the Commission for any expenses arising from litigation relating to the information provided under section 12 of this title."
2010—Subsec. (a). Pub. L. 111–203, §725(a), added subsec. (a) and struck out former subsec. (a) which related to registration requirement of derivatives clearing organizations.
Pub. L. 111–203, §721(e)(6), substituted "section 1a" for "section 1a(9)" in introductory provisions.
Subsec. (b). Pub. L. 111–203, §725(a), added subsec. (b) and struck out former subsec. (b). Prior to amendment, text read as follows: "A derivatives clearing organization that clears agreements, contracts, or transactions excluded from this chapter by section 2(c), 2(d), 2(f), or 2(g) of this title or sections 27 to 27f of this title, or exempted under section 2(h) or 6(c) of this title, or other over-the-counter derivative instruments (as defined in the Federal Deposit Insurance Corporation Improvement Act of 1991) may register with the Commission as a derivatives clearing organization."
Subsec. (c)(2). Pub. L. 111–203, §725(c), added par. (2) and struck out former par. (2) which related to core principles for derivatives clearing organizations.
Subsec. (f)(1). Pub. L. 111–203, §725(h), inserted at end "In order to minimize systemic risk, under no circumstances shall a derivatives clearing organization be compelled to accept the counterparty credit risk of another clearing organization."
Subsecs. (g) to (i). Pub. L. 111–203, §725(b), added subsecs. (g) to (i).
Subsec. (k). Pub. L. 111–203, §725(e), added subsec. (k).
Statutory Notes and Related Subsidiaries
Effective Date of 2015 Amendment
Pub. L. 114–94, div. G, title LXXXVI, §86001(d), Dec. 4, 2015, 129 Stat. 1798, provided that: "The amendments made by this section [amending this section, section 24a of this title, and section 78m of Title 15, Commerce and Trade] shall take effect as if enacted as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111–203)."
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Conflicts of Interest
Pub. L. 111–203, title VII, §725(d), July 21, 2010, 124 Stat. 1692, provided that: "The Commodity Futures Trading Commission shall adopt rules mitigating conflicts of interest in connection with the conduct of business by a swap dealer or a major swap participant with a derivatives clearing organization, board of trade, or a swap execution facility that clears or trades swaps in which the swap dealer or major swap participant has a material debt or material equity investment."
[For definitions of terms used in section 725(d) of Pub. L. 111–203, set out above, see section 5301 of Title 12, Banks and Banking.]
1 So in original. No subsec. (j) has been enacted.
§7a–2. Common provisions applicable to registered entities
(a) Acceptable business practices under core principles
(1) In general
Consistent with the purposes of this chapter, the Commission may issue interpretations, or approve interpretations submitted to the Commission, of sections 7(d) and 7a–1(c)(2) of this title, to describe what would constitute an acceptable business practice under such sections.
(2) Effect of interpretation
An interpretation issued under paragraph (1) may provide the exclusive means for complying with each section described in paragraph (1).
(b) Delegation of functions under core principles
(1) In general
A contract market, derivatives transaction execution facility, or electronic trading facility with respect to a significant price discovery contract may comply with any applicable core principle through delegation of any relevant function to a registered futures association or a registered entity that is not an electronic trading facility.
(2) Responsibility
A contract market, derivatives transaction execution facility, or electronic trading facility that delegates a function under paragraph (1) shall remain responsible for carrying out the function.
(3) Noncompliance
If a contract market, derivatives transaction execution facility, or electronic trading facility that delegates a function under paragraph (1) becomes aware that a delegated function is not being performed as required under this chapter, the contract market, derivatives transaction execution facility, or electronic trading facility shall promptly take steps to address the noncompliance.
(c) New contracts, new rules, and rule amendments
(1) In general
A registered entity may elect to list for trading or accept for clearing any new contract, or other instrument, or may elect to approve and implement any new rule or rule amendment, by providing to the Commission (and the Secretary of the Treasury, in the case of a contract of sale of a government security for future delivery (or option on such a contract) or a rule or rule amendment specifically related to such a contract) a written certification that the new contract or instrument or clearing of the new contract or instrument, new rule, or rule amendment complies with this chapter (including regulations under this chapter).
(2) Rule review
The new rule or rule amendment described in paragraph (1) shall become effective, pursuant to the certification of the registered entity and notice of such certification to its members (in a manner to be determined by the Commission), on the date that is 10 business days after the date on which the Commission receives the certification (or such shorter period as determined by the Commission by rule or regulation) unless the Commission notifies the registered entity within such time that it is staying the certification because there exist novel or complex issues that require additional time to analyze, an inadequate explanation by the submitting registered entity, or a potential inconsistency with this chapter (including regulations under this chapter).
(3) Stay of certification for rules
(A) A notification by the Commission pursuant to paragraph (2) shall stay the certification of the new rule or rule amendment for up to an additional 90 days from the date of the notification.
(B) A rule or rule amendment subject to a stay pursuant to subparagraph (A) shall become effective, pursuant to the certification of the registered entity, at the expiration of the period described in subparagraph (A) unless the Commission—
(i) withdraws the stay prior to that time; or
(ii) notifies the registered entity during such period that it objects to the proposed certification on the grounds that it is inconsistent with this chapter (including regulations under this chapter).
(C) The Commission shall provide a not less than 30-day public comment period, within the 90-day period in which the stay is in effect as described in subparagraph (A), whenever the Commission reviews a rule or rule amendment pursuant to a notification by the Commission under this paragraph.
(4) Prior approval
(A) In general
A registered entity may request that the Commission grant prior approval to any new contract or other instrument, new rule, or rule amendment.
(B) Prior approval required
Notwithstanding any other provision of this section, a designated contract market shall submit to the Commission for prior approval each rule amendment that materially changes the terms and conditions, as determined by the Commission, in any contract of sale for future delivery of a commodity specifically enumerated in section 1a(10) 1 of this title (or any option thereon) traded through its facilities if the rule amendment applies to contracts and delivery months which have already been listed for trading and have open interest.
(C) Deadline
If prior approval is requested under subparagraph (A), the Commission shall take final action on the request not later than 90 days after submission of the request, unless the person submitting the request agrees to an extension of the time limitation established under this subparagraph.
(5) Approval
(A) Rules
The Commission shall approve a new rule, or rule amendment, of a registered entity unless the Commission finds that the new rule, or rule amendment, is inconsistent with this chapter (including regulations).
(B) Contracts and instruments
The Commission shall approve a new contract or other instrument unless the Commission finds that the new contract or other instrument would violate this chapter (including regulations).
(C) Special rule for review and approval of event contracts and swaps contracts
(i) Event contracts
In connection with the listing of agreements, contracts, transactions, or swaps in excluded commodities that are based upon the occurrence, extent of an occurrence, or contingency (other than a change in the price, rate, value, or levels of a commodity described in section 1a(2)(i) 2 of this title), by a designated contract market or swap execution facility, the Commission may determine that such agreements, contracts, or transactions are contrary to the public interest if the agreements, contracts, or transactions involve—
(I) activity that is unlawful under any Federal or State law;
(II) terrorism;
(III) assassination;
(IV) war;
(V) gaming; or
(VI) other similar activity determined by the Commission, by rule or regulation, to be contrary to the public interest.
(ii) Prohibition
No agreement, contract, or transaction determined by the Commission to be contrary to the public interest under clause (i) may be listed or made available for clearing or trading on or through a registered entity.
(iii) Swaps contracts
(I) In general
In connection with the listing of a swap for clearing by a derivatives clearing organization, the Commission shall determine, upon request or on its own motion, the initial eligibility, or the continuing qualification, of a derivatives clearing organization to clear such a swap under those criteria, conditions, or rules that the Commission, in its discretion, determines.
(II) Requirements
Any such criteria, conditions, or rules shall consider—
(aa) the financial integrity of the derivatives clearing organization; and
(bb) any other factors which the Commission determines may be appropriate.
(iv) Deadline
The Commission shall take final action under clauses (i) and (ii) in not later than 90 days from the commencement of its review unless the party seeking to offer the contract or swap agrees to an extension of this time limitation.
(d) Repealed. Pub. L. 111–203, title VII, §745(c), July 21, 2010, 124 Stat. 1737
(e) Reservation of emergency authority
Nothing in this section shall limit or in any way affect the emergency powers of the Commission provided in section 12a(9) of this title.
(f) Rules to avoid duplicative regulation of dual registrants
Consistent with this chapter, each designated contract market and registered derivatives transaction execution facility shall issue such rules as are necessary to avoid duplicative or conflicting rules applicable to any futures commission merchant registered with the Commission pursuant to section 6f(a) of this title (except paragraph (2) thereof), that is also registered with the Securities and Exchange Commission pursuant to section 78o(b) of title 15 (except paragraph (11) thereof) with respect to the application of—
(1) rules of such designated contract market or registered derivatives transaction execution facility of the type specified in section 6d(e) of this title involving security futures products; and
(2) similar rules of national securities associations registered pursuant to section 78o–3(a) of title 15 and national securities exchanges registered pursuant to section 78f(g) of title 15 involving security futures products.
(Sept. 21, 1922, ch. 369, §5c, as added and amended Pub. L. 106–554, §1(a)(5) [title I, §113, title II, §251(h)], Dec. 21, 2000, 114 Stat. 2763, 2763A-399, 2763A-444; Pub. L. 110–234, title XIII, §§13105(e), (f), 13203(i)–(k), May 22, 2008, 122 Stat. 1434, 1440, 1441; Pub. L. 110–246, §4(a), title XIII, §§13105(e), (f), 13203(i)–(k), June 18, 2008, 122 Stat. 1664, 2196, 2202, 2203; Pub. L. 111–203, title VII, §§717(d), 721(e)(7), 745, 749(c), July 21, 2010, 124 Stat. 1652, 1671, 1735, 1747.)
Editorial Notes
References in Text
This chapter, referred to in subsec. (c)(5)(A), was in the original "this subtitle", and was translated as reading "this Act" to reflect the probable intent of Congress.
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2010—Subsec. (a)(1). Pub. L. 111–203, §749(c)(1), struck out ", 7a(d)," after "7(d)" and "and section 2(h)(7) of this title with respect to significant price discovery contracts," before "to describe".
Subsec. (a)(2). Pub. L. 111–203, §745(a), added par. (2) and struck out former par. (2). Prior to amendment, text read as follows: "An interpretation issued under paragraph (1) shall not provide the exclusive means for complying with such sections."
Subsec. (c). Pub. L. 111–203, §745(b), added subsec. (c) and struck out former subsec. (c) which related to new contracts, new rules, and rule amendments and Commission approval upon certification of compliance with this chapter.
Subsec. (c)(1). Pub. L. 111–203, §717(d), designated existing provisions as subpar. (A), inserted heading, and added subpar. (B).
Subsec. (c)(2)(B). Pub. L. 111–203, §721(e)(7), substituted "section 1a(9)" for "section 1a(4)".
Subsec. (d). Pub. L. 111–203, §745(c), struck out subsec. (d) which related to violation of core principles.
Subsec. (f)(1). Pub. L. 111–203, §749(c)(2), substituted "section 6d(e) of this title" for "section 6d(c) of this title".
2008—Subsec. (a)(1). Pub. L. 110–246, §13203(i), which directed amendment of par. (1) by inserting ", and section 2(h)(7) of this title with respect to significant price discovery contracts," after ", and 7a–1(d)(2) of this title", was executed by making the insertion after ", and 7a–1(c)(2) of this title" to reflect the probable intent of Congress and the intervening amendment by Pub. L. 110–246, §13105(e). See below.
Pub. L. 110–246, §13105(e), substituted "7a–1(c)(2)" for "7a–1(d)(2)".
Subsec. (b)(1). Pub. L. 110–246, §13203(j)(1), added par. (1) and struck out heading and text of former par. (1). Text read as follows: "A contract market or derivatives transaction execution facility may comply with any applicable core principle through delegation of any relevant function to a registered futures association or another registered entity."
Subsec. (b)(2), (3). Pub. L. 110–246, §13203(j)(2), (3), substituted "contract market, derivatives transaction execution facility, or electronic trading facility" for "contract market or derivatives transaction execution facility" wherever appearing.
Subsec. (d)(1). Pub. L. 110–246, §13203(k), which directed amendment of par. (1) by inserting "or 2(h)(7)(C) of this title with respect to a significant price discovery contract traded or executed on an electronic trading facility," after "7a–1(d)(2)", was executed by making the insertion after "7a–1(c)(2)" in introductory provisions to reflect the probable intent of Congress and the intervening amendment by Pub. L. 110–246, §13105(e). See below.
Pub. L. 110–246, §13105(e), substituted "7a–1(c)(2)" for "7a–1(d)(2)" in introductory provisions.
Subsec. (f)(1). Pub. L. 110–246, §13105(f), substituted "6d(c)" for "6d(3)".
2000—Subsec. (f). Pub. L. 106–554, §1(a)(5) [title II, §251(h)], added subsec. (f).
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, except as otherwise provided, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Amendment by section 13203(i)–(k) of Pub. L. 110–246 effective June 18, 2008, see section 13204(a) of Pub. L. 110–246, set out as a note under section 2 of this title.
1 So in original. Probably should be "section 1a(9)".
2 So in original. There is no section "1a(2)(i)" in this title.
§7a–3. Repealed. Pub. L. 111–203, title VII, §734(a), July 21, 2010, 124 Stat. 1718
Section, act Sept. 21, 1922, ch. 369, §5d, as added Pub. L. 106–554, §1(a)(5) [title I, §114], Dec. 21, 2000, 114 Stat. 2763, 2763A-401, related to exempt boards of trade.
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as an Effective Date of 2010 Amendment note under section 1a of this title.
§7b. Suspension or revocation of designation as registered entity
The failure of a registered entity to comply with any provision of this chapter, or any regulation or order of the Commission under this chapter, shall be cause for the suspension of the registered entity for a period not to exceed 180 days, or revocation of designation as a registered entity, in accordance with the procedures and subject to the judicial review provided in section 8(b) of this title.
(Sept. 21, 1922, ch. 369, §5e, formerly §5b, as added June 15, 1936, ch. 545, §7, 49 Stat. 1498; amended Pub. L. 90–258, §13, Feb. 19, 1968, 82 Stat. 30; Pub. L. 93–463, title I, §103(a), (b), Oct. 23, 1974, 88 Stat. 1392; Pub. L. 102–546, title II, §209(b)(3), Oct. 28, 1992, 106 Stat. 3607; renumbered §5e and amended Pub. L. 106–554, §1(a)(5) [title I, §§110(1), 115], Dec. 21, 2000, 114 Stat. 2763, 2763A-384, 2763A-402; Pub. L. 110–234, title XIII, §13203(l), May 22, 2008, 122 Stat. 1441; Pub. L. 110–246, §4(a), title XIII, §13203(l), June 18, 2008, 122 Stat. 1664, 2203; Pub. L. 111–203, title VII, §749(d), July 21, 2010, 124 Stat. 1747.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2010—Pub. L. 111–203 struck out "or revocation of the right of an electronic trading facility to rely on the exemption set forth in section 2(h)(3) of this title with respect to a significant price discovery contract," after "or revocation of designation as a registered entity,".
2008—Pub. L. 110–246, §13203(l), inserted ", or revocation of the right of an electronic trading facility to rely on the exemption set forth in section 2(h)(3) of this title with respect to a significant price discovery contract," after "designation as a registered entity".
2000—Pub. L. 106–554, §1(a)(5) [title I, §115], amended section generally. Prior to amendment, section read as follows: "The failure or refusal of any board of trade to comply with any of the provisions of this chapter, or any of the rules, regulations, or orders of the Commission or the commission thereunder, shall be cause for suspending for a period not to exceed six months or revoking the designation of such board of trade as a 'contract market' in accordance with the procedure and subject to the judicial review provided in section 8(b) of this title."
1992—Pub. L. 102–546 substituted reference to section 8(b) of this title for reference to section 8 of this title.
1974—Pub. L. 93–463, §103(a), provided for substitution of "Commission" for "Secretary of Agriculture" except where such words would be stricken by section 103(b), which directed striking the words "the Secretary of Agriculture or" where they appeared in the phrase "the Secretary of Agriculture or the Commission". Because the word "commission" was not capitalized in the text of this section, section 103(b) did not apply to this section and therefore section 103(a) was executed, resulting in the substitution of "the Commission or the commission" for "the Secretary of Agriculture or the commission".
1968—Pub. L. 90–258 substituted "rules, regulations, or orders of the Secretary of Agriculture or the commission" for "rules and regulations of the Secretary of Agriculture".
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, except as otherwise provided, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Amendment by section 13203(l) of Pub. L. 110–246 effective June 18, 2008, see section 13204(a) of Pub. L. 110–246, set out as a note under section 2 of this title.
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–258 effective 120 days after Feb. 19, 1968, see section 28 of Pub. L. 90–258, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 13 of act June 15, 1936, set out as an Effective Date of 1936 Amendment note under section 1 of this title.
§7b–1. Designation of securities exchanges and associations as contract markets
(a) Any board of trade that is registered with the Securities and Exchange Commission as a national securities exchange, is a national securities association registered pursuant to section 78o–3(a) of title 15, or is an alternative trading system shall be a designated contract market in security futures products if—
(1) such national securities exchange, national securities association, or alternative trading system lists or trades no other contracts of sale for future delivery, except for security futures products;
(2) such national securities exchange, national securities association, or alternative trading system files written notice with the Commission in such form as the Commission, by rule, may prescribe containing such information as the Commission, by rule, may prescribe as necessary or appropriate in the public interest or for the protection of customers; and
(3) the registration of such national securities exchange, national securities association, or alternative trading system is not suspended pursuant to an order by the Securities and Exchange Commission.
Such designation shall be effective contemporaneously with the submission of notice, in written or electronic form, to the Commission.
(b)(1) A national securities exchange, national securities association, or alternative trading system that is designated as a contract market pursuant to this section shall be exempt from the following provisions of this chapter and the rules thereunder:
(A) Subsections (c), (e), and (g) of section 6c of this title.
(B) Section 6j of this title.
(C) Section 7 of this title.
(D) Section 7a–2 of this title.
(E) Section 10a of this title.
(F) Section 12(d) of this title.
(G) Section 13(f) 1 of this title.
(H) Section 20 of this title.
(2) An alternative trading system that is a designated contract market under this section shall be required to be a member of a futures association registered under section 21 of this title and shall be exempt from any provision of this chapter that would require such alternative trading system to—
(A) set rules governing the conduct of subscribers other than the conduct of such subscribers' trading on such alternative trading system; or
(B) discipline subscribers other than by exclusion from trading.
(3) To the extent that an alternative trading system is exempt from any provision of this chapter pursuant to paragraph (2) of this subsection, the futures association registered under section 21 of this title of which the alternative trading system is a member shall set rules governing the conduct of subscribers to the alternative trading system and discipline the subscribers.
(4)(A) Except as provided in subparagraph (B), but notwithstanding any other provision of this chapter, the Commission, by rule, regulation, or order, may conditionally or unconditionally exempt any designated contract market in security futures subject to the designation requirement of this section from any provision of this chapter or of any rule or regulation thereunder, to the extent such exemption is necessary or appropriate in the public interest and is consistent with the protection of investors.
(B) The Commission shall, by rule or regulation, determine the procedures under which an exemptive order under this section is granted and may, in its sole discretion, decline to entertain any application for an order of exemption under this section.
(C) An alternative trading system shall not be deemed to be an exchange for any purpose as a result of the designation of such alternative trading system as a contract market under this section.
(Sept. 21, 1922, ch. 369, §5f, as added Pub. L. 106–554, §1(a)(5) [title II, §252(a)], Dec. 21, 2000, 114 Stat. 2763, 2763A-445.)
Editorial Notes
References in Text
Subsec. (f) of section 13 of this title, referred to in subsec. (b)(1)(G), was redesignated subsec. (e) by Pub. L. 110–246, title XIII, §13105(h)(2), June 18, 2008, 122 Stat. 2197.
1 See References in Text note below.
§7b–2. Privacy
(a) Treatment as financial institutions
Notwithstanding section 509(3)(B) of the Gramm-Leach-Bliley Act [15 U.S.C. 6809(3)(B)], any futures commission merchant, commodity trading advisor, commodity pool operator, or introducing broker that is subject to the jurisdiction of the Commission under this chapter with respect to any financial activity shall be treated as a financial institution for purposes of title V of such Act [15 U.S.C. 6801 et seq.] with respect to such financial activity.
(b) Treatment of CFTC as Federal functional regulator
For purposes of title V of such Act [15 U.S.C. 6801 et seq.], the Commission shall be treated as a Federal functional regulator within the meaning of section 509(2) of such Act [15 U.S.C. 6809(2)] and shall prescribe regulations under such title within 6 months after December 21, 2000.
(Sept. 21, 1922, ch. 369, §5g, as added Pub. L. 106–554, §1(a)(5) [title I, §124], Dec. 21, 2000, 114 Stat. 2763, 2763A-411.)
Editorial Notes
References in Text
The Gramm-Leach-Bliley Act, referred to in text, is Pub. L. 106–102, Nov. 12, 1999, 113 Stat. 1338. Title V of the Act is classified principally to chapter 94 (§6801 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title of 1999 Amendment note set out under section 1811 of Title 12, Banks and Banking, and Tables.
§7b–3. Swap execution facilities
(a) Registration
(1) In general
No person may operate a facility for the trading or processing of swaps unless the facility is registered as a swap execution facility or as a designated contract market under this section.
(2) Dual registration
Any person that is registered as a swap execution facility under this section shall register with the Commission regardless of whether the person also is registered with the Securities and Exchange Commission as a swap execution facility.
(b) Trading and trade processing
(1) In general
Except as specified in paragraph (2), a swap execution facility that is registered under subsection (a) may—
(A) make available for trading any swap; and
(B) facilitate trade processing of any swap.
(2) Agricultural swaps
A swap execution facility may not list for trading or confirm the execution of any swap in an agricultural commodity (as defined by the Commission) except pursuant to a rule or regulation of the Commission allowing the swap under such terms and conditions as the Commission shall prescribe.
(c) Identification of facility used to trade swaps by contract markets
A board of trade that operates a contract market shall, to the extent that the board of trade also operates a swap execution facility and uses the same electronic trade execution system for listing and executing trades of swaps on or through the contract market and the swap execution facility, identify whether the electronic trading of such swaps is taking place on or through the contract market or the swap execution facility.
(d) Rule-writing
(1) The Securities and Exchange Commission and Commodity Futures Trading Commission may promulgate rules defining the universe of swaps that can be executed on a swap execution facility. These rules shall take into account the price and nonprice requirements of the counterparties to a swap and the goal of this section as set forth in subsection (e).
(2) For all swaps that are not required to be executed through a swap execution facility as defined in paragraph (1), such trades may be executed through any other available means of interstate commerce.
(3) The Securities and Exchange Commission and Commodity Futures Trading Commission shall update these rules as necessary to account for technological and other innovation.
(e) Rule of construction
The goal of this section is to promote the trading of swaps on swap execution facilities and to promote pre-trade price transparency in the swaps market.
(f) Core principles for swap execution facilities
(1) Compliance with core principles
(A) In general
To be registered, and maintain registration, as a swap execution facility, the swap execution facility shall comply with—
(i) the core principles described in this subsection; and
(ii) any requirement that the Commission may impose by rule or regulation pursuant to section 12a(5) of this title.
(B) Reasonable discretion of swap execution facility
Unless otherwise determined by the Commission by rule or regulation, a swap execution facility described in subparagraph (A) shall have reasonable discretion in establishing the manner in which the swap execution facility complies with the core principles described in this subsection.
(2) Compliance with rules
A swap execution facility shall—
(A) establish and enforce compliance with any rule of the swap execution facility, including—
(i) the terms and conditions of the swaps traded or processed on or through the swap execution facility; and
(ii) any limitation on access to the swap execution facility;
(B) establish and enforce trading, trade processing, and participation rules that will deter abuses and have the capacity to detect, investigate, and enforce those rules, including means—
(i) to provide market participants with impartial access to the market; and
(ii) to capture information that may be used in establishing whether rule violations have occurred;
(C) establish rules governing the operation of the facility, including rules specifying trading procedures to be used in entering and executing orders traded or posted on the facility, including block trades; and
(D) provide by its rules that when a swap dealer or major swap participant enters into or facilitates a swap that is subject to the mandatory clearing requirement of section 2(h) of this title, the swap dealer or major swap participant shall be responsible for compliance with the mandatory trading requirement under section 2(h)(8) of this title.
(3) Swaps not readily susceptible to manipulation
The swap execution facility shall permit trading only in swaps that are not readily susceptible to manipulation.
(4) Monitoring of trading and trade processing
The swap execution facility shall—
(A) establish and enforce rules or terms and conditions defining, or specifications detailing—
(i) trading procedures to be used in entering and executing orders traded on or through the facilities of the swap execution facility; and
(ii) procedures for trade processing of swaps on or through the facilities of the swap execution facility; and
(B) monitor trading in swaps to prevent manipulation, price distortion, and disruptions of the delivery or cash settlement process through surveillance, compliance, and disciplinary practices and procedures, including methods for conducting real-time monitoring of trading and comprehensive and accurate trade reconstructions.
(5) Ability to obtain information
The swap execution facility shall—
(A) establish and enforce rules that will allow the facility to obtain any necessary information to perform any of the functions described in this section;
(B) provide the information to the Commission on request; and
(C) have the capacity to carry out such international information-sharing agreements as the Commission may require.
(6) Position limits or accountability
(A) In general
To reduce the potential threat of market manipulation or congestion, especially during trading in the delivery month, a swap execution facility that is a trading facility shall adopt for each of the contracts of the facility, as is necessary and appropriate, position limitations or position accountability for speculators.
(B) Position limits
For any contract that is subject to a position limitation established by the Commission pursuant to section 6a(a) of this title, the swap execution facility shall—
(i) set its position limitation at a level no higher than the Commission limitation; and
(ii) monitor positions established on or through the swap execution facility for compliance with the limit set by the Commission and the limit, if any, set by the swap execution facility.
(7) Financial integrity of transactions
The swap execution facility shall establish and enforce rules and procedures for ensuring the financial integrity of swaps entered on or through the facilities of the swap execution facility, including the clearance and settlement of the swaps pursuant to section 2(h)(1) of this title.
(8) Emergency authority
The swap execution facility shall adopt rules to provide for the exercise of emergency authority, in consultation or cooperation with the Commission, as is necessary and appropriate, including the authority to liquidate or transfer open positions in any swap or to suspend or curtail trading in a swap.
(9) Timely publication of trading information
(A) In general
The swap execution facility shall make public timely information on price, trading volume, and other trading data on swaps to the extent prescribed by the Commission.
(B) Capacity of swap execution facility
The swap execution facility shall be required to have the capacity to electronically capture and transmit trade information with respect to transactions executed on the facility.
(10) Recordkeeping and reporting
(A) In general
A swap execution facility shall—
(i) maintain records of all activities relating to the business of the facility, including a complete audit trail, in a form and manner acceptable to the Commission for a period of 5 years;
(ii) report to the Commission, in a form and manner acceptable to the Commission, such information as the Commission determines to be necessary or appropriate for the Commission to perform the duties of the Commission under this chapter; and
(iii) shall keep any such records relating to swaps defined in section 1a(47)(A)(v) of this title open to inspection and examination by the Securities and Exchange Commission." 1
(B) Requirements
The Commission shall adopt data collection and reporting requirements for swap execution facilities that are comparable to corresponding requirements for derivatives clearing organizations and swap data repositories.
(11) Antitrust considerations
Unless necessary or appropriate to achieve the purposes of this chapter, the swap execution facility shall not—
(A) adopt any rules or taking 2 any actions that result in any unreasonable restraint of trade; or
(B) impose any material anticompetitive burden on trading or clearing.
(12) Conflicts of interest
The swap execution facility shall—
(A) establish and enforce rules to minimize conflicts of interest in its decision-making process; and
(B) establish a process for resolving the conflicts of interest.
(13) Financial resources
(A) In general
The swap execution facility shall have adequate financial, operational, and managerial resources to discharge each responsibility of the swap execution facility.
(B) Determination of resource adequacy
The financial resources of a swap execution facility shall be considered to be adequate if the value of the financial resources exceeds the total amount that would enable the swap execution facility to cover the operating costs of the swap execution facility for a 1-year period, as calculated on a rolling basis.
(14) System safeguards
The swap execution facility shall—
(A) establish and maintain a program of risk analysis and oversight to identify and minimize sources of operational risk, through the development of appropriate controls and procedures, and automated systems, that—
(i) are reliable and secure; and
(ii) have adequate scalable capacity;
(B) establish and maintain emergency procedures, backup facilities, and a plan for disaster recovery that allow for—
(i) the timely recovery and resumption of operations; and
(ii) the fulfillment of the responsibilities and obligations of the swap execution facility; and
(C) periodically conduct tests to verify that the backup resources of the swap execution facility are sufficient to ensure continued—
(i) order processing and trade matching;
(ii) price reporting;
(iii) market surveillance and
(iv) maintenance of a comprehensive and accurate audit trail.
(15) Designation of chief compliance officer
(A) In general
Each swap execution facility shall designate an individual to serve as a chief compliance officer.
(B) Duties
The chief compliance officer shall—
(i) report directly to the board or to the senior officer of the facility;
(ii) review compliance with the core principles in this subsection;
(iii) in consultation with the board of the facility, a body performing a function similar to that of a board, or the senior officer of the facility, resolve any conflicts of interest that may arise;
(iv) be responsible for establishing and administering the policies and procedures required to be established pursuant to this section;
(v) ensure compliance with this chapter and the rules and regulations issued under this chapter, including rules prescribed by the Commission pursuant to this section; and
(vi) establish procedures for the remediation of noncompliance issues found during compliance office reviews, look backs, internal or external audit findings, self-reported errors, or through validated complaints.
(C) Requirements for procedures
In establishing procedures under subparagraph (B)(vi), the chief compliance officer shall design the procedures to establish the handling, management response, remediation, retesting, and closing of noncompliance issues.
(D) Annual reports
(i) In general
In accordance with rules prescribed by the Commission, the chief compliance officer shall annually prepare and sign a report that contains a description of—
(I) the compliance of the swap execution facility with this chapter; and
(II) the policies and procedures, including the code of ethics and conflict of interest policies, of the swap execution facility.
(ii) Requirements
The chief compliance officer shall—
(I) submit each report described in clause (i) with the appropriate financial report of the swap execution facility that is required to be submitted to the Commission pursuant to this section; and
(II) include in the report a certification that, under penalty of law, the report is accurate and complete.
(g) Exemptions
The Commission may exempt, conditionally or unconditionally, a swap execution facility from registration under this section if the Commission finds that the facility is subject to comparable, comprehensive supervision and regulation on a consolidated basis by the Securities and Exchange Commission, a prudential regulator, or the appropriate governmental authorities in the home country of the facility.
(h) Rules
The Commission shall prescribe rules governing the regulation of alternative swap execution facilities under this section.
(Sept. 21, 1922, ch. 369, §5h, as added Pub. L. 111–203, title VII, §733, July 21, 2010, 124 Stat. 1712.)
Statutory Notes and Related Subsidiaries
Effective Date
Section effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as an Effective Date of 2010 Amendment note under section 1a of this title.
1 So in original. The closing quotation marks probably should not appear.
2 So in original. Probably should be "take".
§8. Application for designation as contract market or derivatives transaction execution facility; time; suspension or revocation of designation; hearing; review by court of appeals
(a) Any person desiring to be designated or registered as a contract market or derivatives transaction execution facility shall make application to the Commission for the designation or registration and accompany the same with a showing that it complies with the conditions set forth in this chapter, and with a sufficient assurance that it will continue to comply with the the 1 requirements of this chapter. The Commission shall approve or deny an application for designation or registration as a contract market or derivatives transaction execution facility within 180 days of the filing of the application. If the Commission notifies the person that its application is materially incomplete and specifies the deficiencies in the application, the running of the 180-day period shall be stayed from the time of such notification until the application is resubmitted in completed form: Provided, That the Commission shall have not less than sixty days to approve or deny the application from the time the application is resubmitted in completed form. If the Commission denies an application, it shall specify the grounds for the denial. In the event of a refusal to designate or register as a contract market or derivatives transaction execution facility any person that has made application therefor, the person shall be afforded an opportunity for a hearing on the record before the Commission, with the right to appeal an adverse decision after such hearing to the court of appeals as provided for in other cases in subsection (b) of this section.
(b) The Commission is authorized to suspend for a period not to exceed 6 months or to revoke the designation or registration of any contract market or derivatives transaction execution facility on a showing that the contract market or derivatives transaction execution facility is not enforcing or has not enforced its rules of government, made a condition of its designation or registration as set forth in sections 7 through 7a–1 of this title or section 7b–1 of this title, or that the contract market or derivatives transaction execution facility or electronic trading facility, or any director, officer, agent, or employee thereof, otherwise is violating or has violated any of the provisions of this chapter or any of the rules, regulations, or orders of the Commission thereunder. Such suspension or revocation shall only be made after a notice to the officers of the contract market or derivatives transaction execution facility or electronic trading facility affected and upon a hearing on the record: Provided, That such suspension or revocation shall be final and conclusive, unless within fifteen days after such suspension or revocation by the Commission such person appeals to the court of appeals for the circuit in which it has its principal place of business, by filing with the clerk of such court a written petition praying that the order of the Commission be set aside or modified in the manner stated in the petition, together with a bond in such sum as the court may determine, conditioned that such person will pay the costs of the proceedings if the court so directs. The clerk of the court in which such a petition is filed shall immediately cause a copy thereof to be delivered to the Commission and file in the court the record in such proceedings, as provided in section 2112 of title 28. The testimony and evidence taken or submitted before the Commission, duly filed as aforesaid as a part of the record, shall be considered by the court of appeals as the evidence in the case. Such a court may affirm or set aside the order of the Commission or may direct it to modify its order. No such order of the Commission shall be modified or set aside by the court of appeals unless it is shown by the person that the order is unsupported by the weight of the evidence or was issued without due notice and a reasonable opportunity having been afforded to such person for a hearing, or infringes the Constitution of the United States, or is beyond the jurisdiction of the Commission.
(Sept. 21, 1922, ch. 369, §6(a), (b), formerly §6(a), 42 Stat. 1001; June 25, 1948, ch. 646, §32(a), 62 Stat. 991; May 24, 1949, ch. 139, §127, 63 Stat. 107; Pub. L. 85–791, §7(a), Aug. 28, 1958, 72 Stat. 944; Pub. L. 90–258, §§14, 15, Feb. 19, 1968, 82 Stat. 30; Pub. L. 93–463, title I, §103(a)–(c), Oct. 23, 1974, 88 Stat. 1392; Pub. L. 95–405, §13(1), (2), Sept. 30, 1978, 92 Stat. 871; Pub. L. 97–444, title II, §218, Jan. 11, 1983, 96 Stat. 2308; Pub. L. 98–620, title IV, §402(3), Nov. 8, 1984, 98 Stat. 3357; renumbered §6(a), (b) and amended Pub. L. 102–546, title II, §209(a)(1)–(3), title IV, §402(1)(B), (9)(A), Oct. 28, 1992, 106 Stat. 3606, 3624, 3625; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(12)(A), (B)], Dec. 21, 2000, 114 Stat. 2763, 2763A-408; Pub. L. 110–234, title XIII, §13203(m), May 22, 2008, 122 Stat. 1441; Pub. L. 110–246, §4(a), title XIII, §13203(m), June 18, 2008, 122 Stat. 1664, 2203; Pub. L. 111–203, title VII, §749(e), July 21, 2010, 124 Stat. 1747.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Section is comprised of subsecs. (a) and (b) of section 6 of act Sept. 21, 1922. Subsec. (c) of section 6 is classified to section 9 of this title. Subsecs. (d), (e), (f), and (g) of section 6 are classified to sections 13b, 9a, 9b, and 9c of this title, respectively.
Amendments
2010—Subsec. (b). Pub. L. 111–203 struck out ", or to revoke the right of an electronic trading facility to rely on the exemption set forth in section 2(h)(3) of this title with respect to a significant price discovery contract," before "on a showing".
2008—Subsec. (b). Pub. L. 110–246, §13203(m), added first sentence, in second sentence substituted "Such suspension or revocation shall only be made after a notice to the officers of the contract market or derivatives transaction execution facility or electronic trading facility affected and upon a hearing on the record" for "Such suspension or revocation shall only be after a notice to the officers of the contract market or derivatives transaction execution facility affected and upon a hearing on the record", and struck out former first sentence which read as follows: "The Commission is authorized to suspend for a period not to exceed six months or to revoke the designation or registration of any contract market or derivatives transaction execution facility on a showing that such contract market or derivatives transaction execution facility is not enforcing or has not enforced its rules of government made a condition of its designation or registration as set forth in sections 7 through 7a–1 of this title or section 7b–1 of this title or that such contract market or derivatives transaction execution facility, or any director, officer, agent, or employee thereof, otherwise is violating or has violated any of the provisions of this chapter or any of the rules, regulations, or orders of the Commission or the Commission thereunder."
2000—Subsec. (a). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(12)(A)(iv)], substituted "designate or register as a contract market or derivatives transaction execution facility any person that has made application therefor, the person" for "designate as a 'contract market' any board of trade that has made application therefor, such board of trade" in last sentence.
Pub. L. 106–554, §1(a)(5) [title I, §123(a)(12)(A)(iii)], in third sentence, substituted "person" for "board of trade" and "180-day period" for "one-year period".
Pub. L. 106–554, §1(a)(5) [title I, §123(a)(12)(A)(ii)], substituted "designation or registration as a contract market or derivatives transaction execution facility within 180 days" for "designation as a contract market within one year" in second sentence.
Pub. L. 106–554, §1(a)(5) [title I, §123(a)(12)(A)(i)], in first sentence, substituted "person desiring to be designated or registered as a contract market or derivatives transaction execution facility shall make application to the Commission for the designation or registration" for "board of trade desiring to be designated a 'contract market' shall make application to the Commission for such designation", "conditions set forth in this chapter" for "above conditions", and "the requirements of this chapter" for "above requirements".
Subsec. (b). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(12)(B)(iii)], substituted "person" for "board of trade" in two places in last sentence.
Pub. L. 106–554, §1(a)(5) [title I, §123(a)(12)(B)(ii)], in second sentence, substituted "contract market or derivatives transaction execution facility affected" for "board of trade affected", "person appeals" for "board of trade appeals" and "person will" for "board of trade will".
Pub. L. 106–554, §1(a)(5) [title I, §123(a)(12)(B)(i)], in first sentence, substituted "designation or registration of any contract market or derivatives transaction execution facility on" for "designation of any board of trade as a 'contract market' upon", "contract market or derivatives transaction execution facility" for "board of trade" in two places, and "designation or registration as set forth in sections 7 through 7a–1 of this title or section 7b–1 of this title" for "designation as set forth in section 7 of this title".
1992—Pub. L. 102–546, §209(a)(1), (2), designated first par. as subsec. (a) and redesignated former par. (a) as subsec. (b).
Subsec. (a). Pub. L. 102–546, §209(a)(3), substituted "subsection (b)" for "paragraph (a)".
Subsec. (b). Pub. L. 102–546, §402(9)(A), which directed amendment of first sentence by striking "the Secretary of Agriculture or", could not be executed because of amendment by Pub. L. 93–463, §103(a). See 1974 Amendment note below.
Pub. L. 102–546, §402(1)(B), substituted "Commission" for "commission" wherever appearing.
1984—Par. (a). Pub. L. 98–620 struck out provisions requiring proceedings in such cases in the court of appeals to be made a preferred cause and expedited in every way.
1983—Pub. L. 97–444 required approval or denial of application within one year period of filing of application, stay of such period following notification that application was incomplete and deficient until resubmission of application, minimum period prior to acting upon resubmitted application, and specification of grounds for denial of application.
1978—Pub. L. 95–405, §13(1), in provisions before par. (a) inserted "on the record" after "opportunity for a hearing".
Par. (a). Pub. L. 95–405, §13(2), inserted "on the record" after "upon a hearing".
1974—Pub. L. 93–463, §103(a), substituted "Commission" for "Secretary of Agriculture" in first par.
Par. (a). Pub. L. 93–463, §103(c), struck out "the Secretary of Agriculture, who shall thereupon notify the other members of" after "The clerk of the court in which such a petition is filed shall immediately cause a copy thereof to be delivered to".
Pub. L. 93–463, §103(a), provided for substitution of "Commission" for "Secretary of Agriculture" except where such words would be stricken by section 103(b), which directed striking the words "the Secretary of Agriculture or" where they appeared in the phrase "the Secretary of Agriculture or the Commission". Because the word "commission" was not capitalized in that phrase in par. (a), section 103(b) did not apply to par. (a) and therefore section 103(a) was executed, resulting in the substitution of "the Commission or the commission" for "the Secretary of Agriculture or the commission".
1968—Pub. L. 90–258, §14, inserted provision affording any board of trade refused a contract market designation a hearing before the Commission with right to appeal in adverse decision to the court of appeals as provided for in par. (a) of this section at end of first par.
Par. (a). Pub. L. 90–258, §15, amended par. (a) generally, striking out such parts both of first sentence and of proviso of last sentence as described the commission as made up of the Secretary of Agriculture, Secretary of Commerce, and Attorney General (covered in definition of "Commission" in section 2 of this title, including representation of such officials by their designees), extending grounds for suspension or revocation of designation to include violations of any provisions of this chapter or rules, regulations, or orders of the Secretary of Agriculture or commission, requiring delivery of appeal petitions to Secretary of Agriculture rather than any member of the commission, who would notify the other members, and filing of commission records of proceedings on appeal by the Secretary of Agriculture and not the commission, striking out provisions describing Secretary of Agriculture as Chairman (now found in section 2 of this title), superseding such part of proviso of seventh sentence as authorized appeals to the commission from Secretary of Agriculture's refusal of a contract market designation by provisions of first par. of this section, and striking out such other part as made decision of court on appeal from commission final and binding on the parties.
1958—Pub. L. 85–791 substituted "thereupon file in the court the record in such proceedings, as provided in section 2112 of title 28" for "forthwith prepare, certify, and file in the court a full and accurate transcript of the record in such proceedings including the notice to the board of trade, a copy of the charges, the evidence, and the report and order" in third notice, and struck out "certified and" after "duly" in fourth sentence.
Statutory Notes and Related Subsidiaries
Change of Name
Act June 25, 1948, as amended by act May 24, 1949, substituted "court of appeals" for "circuit court of appeals" wherever appearing in this section.
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, except as otherwise provided, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Amendment by section 13203(m) of Pub. L. 110–246 effective June 18, 2008, see section 13204(a) of Pub. L. 110–246, set out as a note under section 2 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 of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–405 effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as a note under section 2 of this title.
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–258 effective 120 days after Feb. 19, 1968, see section 28 of Pub. L. 90–258, set out as a note under section 2 of this title.
§9. Prohibition regarding manipulation and false information
(1) Prohibition against manipulation
It shall be unlawful for any person, directly or indirectly, to use or employ, or attempt to use or employ, in connection with any swap, or a contract of sale of any commodity in interstate commerce, or for future delivery on or subject to the rules of any registered entity, any manipulative or deceptive device or contrivance, in contravention of such rules and regulations as the Commission shall promulgate by not later than 1 year after July 21, 2010, provided no rule or regulation promulgated by the Commission shall require any person to disclose to another person nonpublic information that may be material to the market price, rate, or level of the commodity transaction, except as necessary to make any statement made to the other person in or in connection with the transaction not misleading in any material respect.
(A) Special provision for manipulation by false reporting
Unlawful manipulation for purposes of this paragraph shall include, but not be limited to, delivering, or causing to be delivered for transmission through the mails or interstate commerce, by any means of communication whatsoever, a false or misleading or inaccurate report concerning crop or market information or conditions that affect or tend to affect the price of any commodity in interstate commerce, knowing, or acting in reckless disregard of the fact that such report is false, misleading or inaccurate.
(B) Effect on other law
Nothing in this paragraph shall affect, or be construed to affect, the applicability of section 13(a)(2) of this title.
(C) Good faith mistakes
Mistakenly transmitting, in good faith, false or misleading or inaccurate information to a price reporting service would not be sufficient to violate paragraph (1)(A).
(2) Prohibition regarding false information
It shall be unlawful for any person to make any false or misleading statement of a material fact to the Commission, including in any registration application or any report filed with the Commission under this chapter, or any other information relating to a swap, or a contract of sale of a commodity, in interstate commerce, or for future delivery on or subject to the rules of any registered entity, or to omit to state in any such statement any material fact that is necessary to make any statement of a material fact made not misleading in any material respect, if the person knew, or reasonably should have known, the statement to be false or misleading.
(3) Other manipulation
In addition to the prohibition in paragraph (1), it shall be unlawful for any person, directly or indirectly, to manipulate or attempt to manipulate the price of any swap, or of any commodity in interstate commerce, or for future delivery on or subject to the rules of any registered entity.
(4) Enforcement
(A) Authority of Commission
If the Commission has reason to believe that any person (other than a registered entity) is violating or has violated this section, or any other provision of this chapter (including any rule, regulation, or order of the Commission promulgated in accordance with this section or any other provision of this chapter), the Commission may serve upon the person a complaint.
(B) Contents of complaint
A complaint under subparagraph (A) shall—
(i) contain a description of the charges against the person that is the subject of the complaint; and
(ii) have attached or contain a notice of hearing that specifies the date and location of the hearing regarding the complaint.
(C) Hearing
A hearing described in subparagraph (B)(ii)—
(i) shall be held not later than 3 days after service of the complaint described in subparagraph (A);
(ii) shall require the person to show cause regarding why—
(I) an order should not be made—
(aa) to prohibit the person from trading on, or subject to the rules of, any registered entity; and
(bb) to direct all registered entities to refuse all privileges to the person until further notice of the Commission; and
(II) the registration of the person, if registered with the Commission in any capacity, should not be suspended or revoked; and
(iii) may be held before—
(I) the Commission; or
(II) an administrative law judge designated by the Commission, under which the administrative law judge shall ensure that all evidence is recorded in written form and submitted to the Commission.
(5) Subpoena
For the purpose of securing effective enforcement of the provisions of this chapter, for the purpose of any investigation or proceeding under this chapter, and for the purpose of any action taken under section 16(f) of this title, any member of the Commission or any Administrative Law Judge or other officer designated by the Commission (except as provided in paragraph (7)) may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence, and require the production of any books, papers, correspondence, memoranda, or other records that the Commission deems relevant or material to the inquiry.
(6) Witnesses
The attendance of witnesses and the production of any such records may be required from any place in the United States, any State, or any foreign country or jurisdiction at any designated place of hearing.
(7) Service
A subpoena issued under this section 1 may be served upon any person who is not to be found within the territorial jurisdiction of any court of the United States in such manner as the Federal Rules of Civil Procedure prescribe for service of process in a foreign country, except that a subpoena to be served on a person who is not to be found within the territorial jurisdiction of any court of the United States may be issued only on the prior approval of the Commission.
(8) Refusal to obey
In case of contumacy by, or refusal to obey a subpoena issued to, any person, the Commission may invoke the aid of any court of the United States within the jurisdiction in which the investigation or proceeding is conducted, or where such person resides or transacts business, in requiring the attendance and testimony of witnesses and the production of books, papers, correspondence, memoranda, and other records. Such court may issue an order requiring such person to appear before the Commission or member or Administrative Law Judge or other officer designated by the Commission, there to produce records, if so ordered, or to give testimony touching the matter under investigation or in question.
(9) Failure to obey
Any failure to obey such order of the court may be punished by the court as a contempt thereof. All process in any such case may be served in the judicial district wherein such person is an inhabitant or transacts business or wherever such person may be found.
(10) Evidence
On the receipt of evidence under paragraph (4)(C)(iii), the Commission may—
(A) prohibit the person that is the subject of the hearing from trading on, or subject to the rules of, any registered entity and require all registered entities to refuse the person all privileges on the registered entities for such period as the Commission may require in the order;
(B) if the person is registered with the Commission in any capacity, suspend, for a period not to exceed 180 days, or revoke, the registration of the person;
(C) assess such person—
(i) a civil penalty of not more than an amount equal to the greater of—
(I) $140,000; or
(II) triple the monetary gain to such person for each such violation; or
(ii) in any case of manipulation or attempted manipulation in violation of this section or section 13(a)(2) of this title, a civil penalty of not more than an amount equal to the greater of—
(I) $1,000,000; or
(II) triple the monetary gain to the person for each such violation; and
(D) require restitution to customers of damages proximately caused by violations of the person.
(11) Orders
(A) Notice
The Commission shall provide to a person described in paragraph (10) and the appropriate governing board of the registered entity notice of the order described in paragraph (10) by—
(i) registered mail;
(ii) certified mail; or
(iii) personal delivery.
(B) Review
(i) In general
A person described in paragraph (10) may obtain a review of the order or such other equitable relief as determined to be appropriate by a court described in clause (ii).
(ii) Petition
To obtain a review or other relief under clause (i), a person may, not later than 15 days after notice is given to the person under clause (i), file a written petition to set aside the order with the United States Court of Appeals—
(I) for the circuit in which the petitioner carries out the business of the petitioner; or
(II) in the case of an order denying registration, the circuit in which the principal place of business of the petitioner is located, as listed on the application for registration of the petitioner.
(C) Procedure
(i) Duty of clerk of appropriate court
The clerk of the appropriate court under subparagraph (B)(ii) shall transmit to the Commission a copy of a petition filed under subparagraph (B)(ii).
(ii) Duty of Commission
In accordance with section 2112 of title 28, the Commission shall file in the appropriate court described in subparagraph (B)(ii) the record theretofore made.
(iii) Jurisdiction of appropriate court
Upon the filing of a petition under subparagraph (B)(ii), the appropriate court described in subparagraph (B)(ii) may affirm, set aside, or modify the order of the Commission.
(Sept. 21, 1922, ch. 369, §6(c), formerly §6(b), 42 Stat. 1002; June 15, 1936, ch. 545, §8, 49 Stat. 1498; June 25, 1948, ch. 646, §32(a), 62 Stat. 991; May 24, 1949, ch. 139, §127, 63 Stat. 107; June 16, 1955, ch. 151, 69 Stat. 160; Pub. L. 85–791, §7(b), Aug. 28, 1958, 72 Stat. 944; Pub. L. 86–507, §1(2), June 11, 1960, 74 Stat. 200; Pub. L. 90–258, §16, Feb. 19, 1968, 82 Stat. 30; Pub. L. 91–452, title II, §202, Oct. 15, 1970, 84 Stat. 928; Pub. L. 93–463, title I, §103(a), (b), (d), (e), title II, §§204(b), 205(b), 212(a)(1), (2), title IV, §408, Oct. 23, 1974, 88 Stat. 1392, 1397, 1400, 1403, 1414; Pub. L. 95–405, §13(3), Sept. 30, 1978, 92 Stat. 871; Pub. L. 97–444, title II, §219, Jan. 11, 1983, 96 Stat. 2308; Pub. L. 99–641, title I, §103, Nov. 10, 1986, 100 Stat. 3557; renumbered §6(c) and amended Pub. L. 102–546, title II, §§209(a)(1), 212(b), 223, title III, §301, title IV, §402(1)(C), (6), (7), (9)(B), Oct. 28, 1992, 106 Stat. 3606, 3609, 3617, 3622, 3624, 3625; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(12)(C)], Dec. 21, 2000, 114 Stat. 2763, 2763A-409; Pub. L. 110–234, title XIII, §13103(a), May 22, 2008, 122 Stat. 1433; Pub. L. 110–246, §4(a), title XIII, §13103(a), June 18, 2008, 122 Stat. 1664, 2195; Pub. L. 111–203, title VII, §§741(b)(3), 753(a), July 21, 2010, 124 Stat. 1731, 1750.)
Editorial Notes
References in Text
This section, referred to in par. (7), means section 6 of act Sept. 21, 1922, ch. 369, 42 Stat. 1001. For classification of section 6 to the Code, see Codification note below.
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Section is comprised of subsec. (c) of section 6 of act Sept. 21, 1922. Prior to amendment by Pub. L. 111–203, a further provision of subsec. (c) was contained in section 15 of this title and, prior to its incorporation into the Code, contained a provision as to finality of judgments and review by the Supreme Court which is covered by section 1254 of Title 28, Judiciary and Judicial Procedure. Subsecs. (a) and (b) of section 6 are classified to section 8 of this title. Subsecs. (d), (e), (f), and (g) of section 6 are classified to sections 13b, 9a, 9b, and 9c of this title, respectively.
Amendments
2010—Pub. L. 111–203, §753(a), amended section generally. Prior to amendment, section related to exclusion of persons from privilege of "registered entities", procedure for exclusion, review by court of appeals, and enforcement powers of Commission.
Pub. L. 111–203, §741(b)(3), in first sentence, inserted "or of any swap," before "or has willfully made".
2008—Pub. L. 110–246, §13103(a), in cl. (3) of third sentence inserted "(A)" after "assess such person" and added subcl. (B).
2000—Pub. L. 106–554 substituted "registered entity" for "contract market" wherever appearing, "registered entities" for "contract markets" wherever appearing, and "privileges" for "trading privileges" in two places.
1992—Pub. L. 102–546, §402(9)(B), which directed amendment of first sentence by striking "the Secretary of Agriculture or", could not be executed because of amendment by Pub. L. 93–463, §103(a). See 1974 Amendment note below.
Pub. L. 102–546, §§209(a)(1), 212(b), 223, 402(1)(C), (6), substituted, in first sentence, "Commission thereunder" for "commission thereunder", in sentence beginning "Upon evidence received", inserted "(1)", substituted "(2) if" for "and, if", "suspend" for "may suspend", "(3)" for "and may", "the higher of $100,000 or triple the monetary gain to such person" for "$100,000", and inserted before period "and (4) require restitution to customers of damages proximately caused by violations of such persons", and in sentence beginning "After the issuance", substituted "offending person" for "offending person.".
1983—Pub. L. 97–444 struck out "as futures commission merchant or any person associated therewith as described in section 6k of this title, commodity trading advisor, commodity pool operator, or as floor broker hereunder" after "such person, if registered" and also after "such person is registered" and inserted ", or in the case of an order denying registration, the circuit in which the petitioner's principal place of business listed on petitioner's application for registration is located," after "court of appeals of the circuit in which the petitioner is doing business".
1974—Pub. L. 93–463, §§103(e), 204(b), 205(b), 212(a)(1), (2), 408, substituted "it" for "he", inserted "or any person associated therewith as described in section 6k of this title," after "futures commission merchant" wherever appearing, inserted "commodity trading advisor, commodity pool operator" before "or as floor broker" wherever appearing, inserted provision for the assessment of civil penalties of not more than $100,000 for each violation, set a limit of fifteen days after the issuance of an order within which period the person against whom the order was issued must file with the court of appeals his petition that the order be set aside, and substituted "an Administrative Law Judge" and "Administrative Law Judge" for "a referee" and "referee", respectively.
Pub. L. 93–463, §103(a), provided for substitution of "Commission" for "Secretary of Agriculture" except where such words would be stricken by section 103(b), which directed striking the words "the Secretary of Agriculture or" where they appeared in the phrase "the Secretary of Agriculture or the Commission". Section 103(a) was executed wherever the term "Secretary of Agriculture" appeared in this section including in the phrase "the Secretary of Agriculture or the commission" in the first sentence. Because the word "commission" was not capitalized in that phrase in the first sentence, section 103(b) did not apply to that phrase and therefore section 103(a) was executed, resulting in the substitution of "the Commission or the commission" for "the Secretary of Agriculture or the commission".
1968—Pub. L. 90–258 amended first sentence generally, providing for denial of trading privileges to persons other than contract markets and suspension or revocation of registration of futures commission merchants and floor brokers, who are manipulating or have attempted to manipulate prices, for willful, material, misstatements in, or omissions from, reports or registration statements, and for violations of orders of Secretary of Agriculture or commission, and authorizing the Secretary to prohibit such persons from trading on or subject to rules of any contract market.
1960—Pub. L. 86–507 inserted "or by certified mail" after "registered mail".
1958—Pub. L. 85–791 substituted "transmitted by the clerk of the court to the Secretary of Agriculture and thereupon the Secretary of Agriculture shall file in the court the record theretofore made, as provided in section 2112 of Title 28" for "served upon the Secretary of Agriculture by delivering such copy to him and thereupon the Secretary of Agriculture shall forthwith certify and file in the court a transcript of the record theretofore made, including evidence received" in seventh sentence, and substituted "petition" for "transcript" in eighth sentence.
1936—Act June 15, 1936, among other changes, amended section by inserting provisions relating to the service of complaints and penalties for violations of this chapter.
Statutory Notes and Related Subsidiaries
Change of Name
Act June 25, 1948, as amended by act May 24, 1949, substituted "court of appeals" for "circuit court of appeals" wherever appearing in this section.
Effective Date of 2010 Amendment
Amendment by section 741(b)(3) of Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Pub. L. 111–203, title VII, §753(d), July 21, 2010, 124 Stat. 1754, provided that:
"(1) The amendments made by this section [amending this section and sections 13b and 25 of this title] shall take effect on the date on which the final rule promulgated by the Commodity Futures Trading Commission [see 76 F.R. 41398, effective Aug. 15, 2011] pursuant to this Act [see Tables for classification] takes effect.
"(2) Paragraph (1) shall not preclude the Commission from undertaking prior to the effective date any rulemaking necessary to implement the amendments contained in this section."
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–258 effective 120 days after Feb. 19, 1968, see section 28 of Pub. L. 90–258, set out as a note under section 2 of this title.
Effective Date of 1936 Amendment
Amendment by act June 15, 1936, effective 90 days after June 15, 1936, see section 13 of act June 15, 1936, set out as a note under section 1 of this title.
1 See References in Text note below.
§9a. Assessment of money penalties
(1) In determining the amount of the money penalty assessed under section 9 of this title, the Commission shall consider the appropriateness of such penalty to the gravity of the violation.
(2) Unless the person against whom a money penalty is assessed under section 9 of this title shows to the satisfaction of the Commission within fifteen days from the expiration of the period allowed for payment of such penalty that either an appeal as authorized by section 9 of this title has been taken or payment of the full amount of the penalty then due has been made, at the end of such fifteen-day period and until such person shows to the satisfaction of the Commission that payment of such amount with interest thereon to date of payment has been made—
(A) such person shall be prohibited automatically from the privileges of all registered entities; and
(B) if such person is registered with the Commission, such registration shall be suspended automatically.
(3) If a person against whom a money penalty is assessed under section 9 of this title takes an appeal and if the Commission prevails or the appeal is dismissed, unless such person shows to the satisfaction of the Commission that payment of the full amount of the penalty then due has been made by the end of thirty days from the date of entry of judgment on the appeal—
(A) such person shall be prohibited automatically from the privileges of all registered entities; and
(B) if such person is registered with the Commission, such registration shall be suspended automatically.
If the person against whom the money penalty is assessed fails to pay such penalty after the lapse of the period allowed for appeal or after the affirmance of such penalty, the Commission may refer the matter to the Attorney General who shall recover such penalty by action in the appropriate United States district court.
(4) Any designated clearing organization that knowingly or recklessly evades or participates in or facilitates an evasion of the requirements of section 2(h) of this title shall be liable for a civil money penalty in twice the amount otherwise available for a violation of section 2(h) of this title.
(5) Any swap dealer or major swap participant that knowingly or recklessly evades or participates in or facilitates an evasion of the requirements of section 2(h) of this title shall be liable for a civil money penalty in twice the amount otherwise available for a violation of section 2(h) of this title.
(Sept. 21, 1922, ch. 369, §6(e), formerly §6(d), as added Pub. L. 93–463, title II, §212(a)(3), Oct. 23, 1974, 88 Stat. 1403; renumbered §6(e) and amended Pub. L. 102–546, title II, §209(a)(1), (5), Oct. 28, 1992, 106 Stat. 3606; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(12)(E)], Dec. 21, 2000, 114 Stat. 2763, 2763A-409; Pub. L. 111–203, title VII, §741(b)(11), July 21, 2010, 124 Stat. 1732.)
Editorial Notes
Codification
Section is comprised of subsec. (e) of section 6 of act Sept. 21, 1922. Subsecs. (a) and (b) of section 6 are classified to section 8 of this title. Subsec. (c) of section 6 is classified to section 9 of this title. Subsecs. (d), (f), and (g) of section 6 are classified to sections 13b, 9b, and 9c of this title, respectively.
Amendments
2010—Pars. (4), (5). Pub. L. 111–203 added pars. (4) and (5).
2000—Pars. (2)(A), (3)(A). Pub. L. 106–554 substituted "the privileges of all registered entities" for "trading on all contract markets".
1992—Pub. L. 102–546 amended section generally. Prior to amendment, section read as follows: "In determining the amount of the money penalty assessed under sections 9 and 15 of this title, the Commission shall consider, in the case of a person whose primary business involves the use of the commodity futures market—the appropriateness of such penalty to the size of the business of the person charged, the extent of such person's ability to continue in business, and the gravity of the violation; and in the case of a person whose primary business does not involve the use of the commodity futures market—the appropriateness of such penalty to the net worth of the person charged, and the gravity of the violation. If the offending person upon whom such penalty is imposed, after the lapse of the period allowed for appeal or after the affirmance of such penalty, shall fail to pay such penalty the Commission shall refer the matter to the Attorney General who shall recover such penalty by action in the appropriate United States district court."
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date
For effective date of section, see section 418 of Pub. L. 93–463, set out as an Effective Date of 1974 Amendment note under section 2 of this title.
§9b. Rules prohibiting deceptive and other abusive telemarketing acts or practices
(1) Except as provided in paragraph (2), not later than six months after the effective date of rules promulgated by the Federal Trade Commission under section 6102(a) of title 15, the Commission shall promulgate, or require each registered futures association to promulgate, rules substantially similar to such rules to prohibit deceptive and other abusive telemarketing acts or practices by any person registered or exempt from registration under this chapter in connection with such person's business as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, leverage transaction merchant, floor broker, or floor trader, or a person associated with any such person.
(2) The Commission is not required to promulgate rules under paragraph (1) if it determines that—
(A) rules adopted by the Commission under this chapter provide protection from deceptive and abusive telemarketing by persons described under paragraph (1) substantially similar to that provided by rules promulgated by the Federal Trade Commission under section 6102(a) of title 15; or
(B) such a rule promulgated by the Commission is not necessary or appropriate in the public interest, or for the protection of customers in the futures and options markets, or would be inconsistent with the maintenance of fair and orderly markets.
If the Commission determines that an exception described in subparagraph (A) or (B) applies, the Commission shall publish in the Federal Register its determination with the reasons for it.
(Sept. 21, 1922, ch. 369, §6(f), as added Pub. L. 103–297, §3(e)(2), Aug. 16, 1994, 108 Stat. 1547.)
Editorial Notes
Codification
Section is comprised of subsec. (f) of section 6 of act Sept. 21, 1922. Subsecs. (a) and (b) of section 6 are classified to section 8 of this title. Subsec. (c) of section 6 is classified to section 9 of this title. Subsecs. (d), (e), and (g) of section 6 are classified to sections 13b, 9a, and 9c of this title, respectively.
§9c. Notice of investigations and enforcement actions
The Commission shall provide the Securities and Exchange Commission with notice of the commencement of any proceeding and a copy of any order entered by the Commission pursuant to section 9 and 13b of this title against any futures commission merchant or introducing broker registered pursuant to section 6f(a)(2) of this title, any floor broker or floor trader exempt from registration pursuant to section 6f(a)(3) of this title, any associated person exempt from registration pursuant to section 6k(6) of this title, or any board of trade designated as a contract market pursuant to section 7b–1 of this title.
(Sept. 21, 1922, ch. 369, §6(g), as added Pub. L. 106–554, §1(a)(5) [title II, §253(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A-449.)
Editorial Notes
Codification
Section is comprised of subsec. (g) of section 6 of act Sept. 21, 1922. Subsecs. (a) and (b) of section 6 are classified to section 8 of this title. Subsec. (c) of section 6 is classified to section 9 of this title. Subsecs. (d), (e), and (f) of section 6 are classified to sections 13b, 9a, and 9b of this title, respectively.
§10. Repealed. June 25, 1948, ch. 646, §39, 62 Stat. 992, eff. Sept. 1, 1948
Section, acts Sept. 21, 1922, ch. 369, §6(b), 42 Stat. 1001; June 15, 1936, ch. 545, §8(k), 49 Stat. 1499, related to review by Supreme Court on certiorari. See section 1254 of Title 28, Judiciary and Judicial Procedure.
§10a. Cooperative associations and corporations, exclusion from board of trade; rules of board inapplicable to payment of compensation by association
(a) No board of trade which has been designated or registered as a contract market or a derivatives transaction execution facility exclude 1 from membership in, and all privileges on, such board of trade, any association or corporation engaged in cash commodity business having adequate financial responsibility which is organized under the cooperative laws of any State, or which has been recognized as a cooperative association of producers by the United States Government or by any agency thereof, if such association or corporation complies and agrees to comply with such terms and conditions as are or may be imposed lawfully upon other members of such board, and as are or may be imposed lawfully upon a cooperative association of producers engaged in cash commodity business, unless such board of trade is authorized by the commission to exclude such association or corporation from membership and privileges after hearing held upon at least three days' notice subsequent to the filing of complaint by the board of trade: Provided, however, That if any such association or corporation shall fail to meet its obligations with any established clearing house or clearing agency of any contract market, such association or corporation shall be ipso facto debarred from further trading on such contract market, except such trading as may be necessary to close open trades and to discharge existing contracts in accordance with the rules of such contract market applicable in such cases. Such commission may prescribe that such association or corporation shall have and retain membership and privileges, with or without imposing conditions, or it may permit such board of trade immediately to bar such association or corporation from membership and privileges. Any order of said commission entered hereunder shall be reviewable by the court of appeals for the circuit in which such association or corporation, or such board of trade, has its principal place of business, on written petition either of such association or corporation, or of such board of trade, under the procedure provided in section 8(b) of this title, but such order shall not be stayed by the court pending review.
(b) No rule of any board of trade designated or registered as a contract market or a derivatives transaction execution facility shall forbid or be construed to forbid the payment of compensation on a commodity-unit basis, or otherwise, by any federated cooperative association to its regional member-associations for services rendered or to be rendered in connection with any organization work, educational activity, or procurement of patronage, provided no part of any such compensation is returned to patrons (whether members or nonmembers) of such cooperative association, or of its regional or local member-associations, otherwise than as a dividend on capital stock or as a patronage dividend out of the net earnings or surplus of such federated cooperative association.
(Sept. 21, 1922, ch. 369, §6a, as added June 15, 1936, ch. 545, §9, 49 Stat. 1499; amended June 25, 1948, ch. 646, §32(a), 62 Stat. 991; May 24, 1949, ch. 139, §127, 63 Stat. 107; Pub. L. 102–546, title II, §209(b)(4), title IV, §402(8), Oct. 28, 1992, 106 Stat. 3607, 3625; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(13)], Dec. 21, 2000, 114 Stat. 2763, 2763A-409.)
Editorial Notes
Amendments
2000—Subsec. (a). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(13)(A)], substituted "designated or registered as a contract market or a derivatives transaction execution facility" for "designated as a 'contract market' shall".
Subsec. (b). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(13)(B)], substituted "designated or registered as a contract market or a derivatives transaction execution facility" for "designated as a contract market".
1992—Pub. L. 102–546 redesignated subsecs. (1) and (2) as (a) and (b), respectively, and in subsec. (a) substituted reference to section 8(b) of this title for reference to section 8 of this title.
Statutory Notes and Related Subsidiaries
Change of Name
Act June 25, 1948, as amended by act May 24, 1949, substituted "court of appeals" for "circuit court of appeals" wherever appearing.
Effective Date
For effective date of section, see section 13 of act June 15, 1936, set out as an Effective Date of 1936 Amendment note under section 1 of this title.
1 So in original. Probably should read "shall exclude".
§11. Vacation on request of designation or registration as "registered entity"; redesignation or reregistration
Any person that has been designated or registered a registered entity in the manner provided in this chapter may have such designation or registration vacated and set aside by giving notice in writing to the Commission requesting that its designation or registration as a registered entity be vacated, which notice shall be served at least ninety days prior to the date named therein as the date when the vacation of designation or registration shall take effect. Upon receipt of such notice the Commission shall forthwith order the vacation of the designation or registration of the registered entity, effective upon the day named in the notice, and shall forthwith send a copy of the notice and its order to all other registered entities. From and after the date upon which the vacation became effective the said person can thereafter be designated or registered again a registered entity by making application to the Commission in the manner in this chapter provided for an original application.
(Sept. 21, 1922, ch. 369, §7, 42 Stat. 1002; Pub. L. 93–463, title I, §103(a), (e), Oct. 23, 1974, 88 Stat. 1392; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(17)], Dec. 21, 2000, 114 Stat. 2763, 2763A-409.)
Editorial Notes
Amendments
2000—Pub. L. 106–554, in first sentence, substituted "person" for "board of trade", inserted "or registered" after "designated", inserted "or registration" after "designation" wherever appearing, and substituted "registered entity" for "contract market" in two places, in second sentence, substituted "designation or registration of the registered entity" for "designation of such board of trade as a contract market" and "registered entities" for "contract markets", and, in last sentence, substituted "person" for "board of trade" and "designated or registered again a registered entity" for "designated again a contract market".
1974—Pub. L. 93–463 substituted "Commission" for "Secretary of Agriculture" and "its order" for "his order".
Statutory Notes and Related Subsidiaries
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
§12. Public disclosure
(a) Investigations respecting operations of boards of trade and others subject to this chapter; publication of results; restrictions; information received from foreign futures authorities; undercover operations; notice of investigations and enforcement actions
(1) For the efficient execution of the provisions of this chapter, and in order to provide information for the use of Congress, the Commission may make such investigations as it deems necessary to ascertain the facts regarding the operations of boards of trade and other persons subject to the provisions of this chapter. The Commission may publish from time to time the results of any such investigation and such general statistical information gathered therefrom as it deems of interest to the public: Provided, That except as otherwise specifically authorized in this chapter, the Commission may not publish data and information that would separately disclose the business transactions or market positions of any person and trade secrets or names of customers: Provided further, That the Commission may withhold from public disclosure any data or information concerning or obtained in connection with any pending investigation of any person. The Commission shall not be compelled to disclose any information or data obtained from a foreign futures authority if—
(A) the foreign futures authority has in good faith determined and represented to the Commission that disclosure of such information or data by that foreign futures authority would violate the laws applicable to that foreign futures authority; and
(B) the Commission obtains such information pursuant to—
(i) such procedure as the Commission may authorize for use in connection with the administration or enforcement of this chapter; or
(ii) a memorandum of understanding with that foreign futures authority;
except that nothing in this subsection shall prevent the Commission from disclosing publicly any information or data obtained by the Commission from a foreign futures authority when such disclosure is made in connection with a congressional proceeding, an administrative or judicial proceeding commenced by the United States or the Commission, in any receivership proceeding involving a receiver appointed in a judicial proceeding commenced by the United States or the Commission, or in any proceeding under title 11 in which the Commission has intervened or in which the Commission has the right to appear and be heard. Nothing in this subsection shall be construed to authorize the Commission to withhold information or data from Congress. For purposes of section 552 of title 5, this subsection shall be considered a statute described in subsection (b)(3)(B) of section 552.
(2) In conducting investigations authorized under this subsection or any other provision of this chapter, the Commission shall continue, as the Commission determines necessary, to request the assistance of and cooperate with the appropriate Federal agencies in the conduct of such investigations, including undercover operations by such agencies. The Commission and the Department of Justice shall assess the effectiveness of such undercover operations and, within two years of October 28, 1992, shall recommend to Congress any additional undercover or other authority for the Commission that the Commission or the Department of Justice believes to be necessary.
(3) The Commission shall provide the Securities and Exchange Commission with notice of the commencement of any proceeding and a copy of any order entered by the Commission against any futures commission merchant or introducing broker registered pursuant to section 6f(a)(2) of this title, any floor broker or floor trader exempt from registration pursuant to section 6f(a)(3) of this title, any associated person exempt from registration pursuant to section 6k(6) of this title, or any board of trade designated as a contract market pursuant to section 7b–1 of this title.
(b) Business matters; congressional, administrative, judicial, and bankruptcy proceedings
The Commission may disclose publicly any data or information that would separately disclose the market positions, business transactions, trade secrets, or names of customers of any person when such disclosure is made in connection with a congressional proceeding, in an administrative or judicial proceeding brought under this chapter, in any receivership proceeding involving a receiver appointed in a judicial proceeding brought under this chapter, or in any bankruptcy proceeding in which the Commission has intervened or in which the Commission has the right to appear and be heard under title 11. This subsection shall not apply to the disclosure of data or information obtained by the Commission from a foreign futures authority.
(c) Reports respecting conduct of registered entities or transactions of violators; contents
The Commission may make or issue such reports as it deems necessary, or such opinions or orders as may be required under other provisions of law, relative to the conduct of any registered entity or to the transactions of any person found guilty of violating the provisions of this chapter or the rules, regulations, or orders of the Commission thereunder in proceedings brought under sections 8, 9, 9a, 9b, 9c, and 13b of this title. In any such report or opinion, the Commission may set forth the facts as to any actual transaction or any information referred to in subsection (b) of this section, if such facts or information have previously been disclosed publicly in connection with a congressional proceeding, or in an administrative or judicial proceeding brought under this chapter.
(d) Investigations respecting marketing conditions of commodities and commodity products and byproducts; reports
The Commission, upon its own initiative or in cooperation with existing governmental agencies, shall investigate the marketing conditions of commodities and commodity products and byproducts, including supply and demand for these commodities, cost to the consumer, and handling and transportation charges. It shall also compile and furnish to producers, consumers, and distributors, by means of regular or special reports, or by such other methods as it deems most effective, information respecting the commodity markets, together with information on supply, demand, prices, and other conditions in this and other countries that affect the markets.
(e) Names and addresses of traders of boards of trade previously disclosed; disclosure to Congress and agencies or departments of States or foreign governments or foreign futures authority
The Commission may disclose and make public, where such information has previously been disclosed publicly in accordance with the provisions of this section, the names and addresses of all traders on the boards of trade on the commodity markets with respect to whom the Commission has information, and any other information in the possession of the Commission relating to the amount of commodities purchased or sold by each such trader. Upon the request of any committee of either House of Congress, acting within the scope of its jurisdiction, the Commission shall furnish to such committee the names and addresses of all traders on such boards of trade with respect to whom the Commission has information, and any other information in the possession of the Commission relating to the amount of any commodity purchased or sold by each such trader. Upon the request of any department or agency of the Government of the United States, acting within the scope of its jurisdiction, the Commission may furnish to such department or agency any information in the possession of the Commission obtained in connection with the administration of this chapter. However, any information furnished under this subsection to any Federal department or agency shall not be disclosed by such department or agency except in any action or proceeding under the laws of the United States to which it, the Commission, or the United States is a party. Upon the request of any department or agency of any State or any political subdivision thereof, acting within the scope of its jurisdiction, any foreign futures authority, or any department or agency of any foreign government or any political subdivision thereof, acting within the scope of its jurisdiction, the Commission may furnish to such foreign futures authority, department or agency any information in the possession of the Commission obtained in connection with the administration of this chapter. Any information furnished to any department or agency of any State or political subdivision thereof shall not be disclosed by such department or agency except in connection with an adjudicatory action or proceeding brought under this chapter or the laws of such State or political subdivision to which such State or political subdivision or any department or agency thereof is a party. The Commission shall not furnish any information to a foreign futures authority or to a department, central bank and ministries, or agency of a foreign government or political subdivision thereof unless the Commission is satisfied that the information will not be disclosed by such foreign futures authority, department, central bank and ministries, or agency except in connection with an adjudicatory action or proceeding brought under the laws of such foreign government or political subdivision to which such foreign government or political subdivision or any department, central bank and ministries, or agency thereof, or foreign futures authority, is a party.
(f) Compliance with subpoena after notice to informant; congressional subpoenas and requests for information excepted
The Commission shall disclose information in its possession pursuant to a subpoena or summons only if—
(1) a copy of the subpoena or summons has been mailed to the last known home or business address of the person who submitted the information that is the subject of the subpoena or summons, if the address is known to the Commission, or, if such mailing would be unduly burdensome, the Commission provides other appropriate notice of the subpoena or summons to such person, and
(2) at least fourteen days have expired from the date of such mailing of the subpoena or summons, or such other notice.
This subsection shall not apply to congressional subpoenas or congressional requests for information.
(g) Requests for information by State agencies or subdivisions; volunteering of information by Commission
The Commission shall provide any registration information maintained by the Commission on any registrant upon reasonable request made by any department or agency of any State or any political subdivision thereof. Whenever the Commission determines that such information may be appropriate for use by any department or agency of a State or political subdivision thereof, the Commission shall provide such information without request.
(h) Omitted
(i) Review and audits by Comptroller General
The Comptroller General of the United States shall conduct reviews and audits of the Commission and make reports thereon. For the purpose of conducting such reviews and audits, the Comptroller General shall be furnished such information regarding the powers, duties, organizations, transactions, operations, and activities of the Commission as the Comptroller General may require and the Comptroller General and the duly authorized representatives of the Comptroller General shall, for the purpose of securing such information, have access to and the right to examine any books, documents, papers, or records of the Commission, except that in reports the Comptroller General shall not include data and information that would separately disclose the business transactions of any person and trade secrets or names of customers, although such data shall be provided upon request by any committee of either House of Congress acting within the scope of its jurisdiction.
(Sept. 21, 1922, ch. 369, §8, 42 Stat. 1003; June 15, 1936, ch. 545, §2, 49 Stat. 1491; Pub. L. 90–258, §19(a), Feb. 19, 1968, 82 Stat. 32; Pub. L. 93–463, title I, §103(a), (e), Oct. 23, 1974, 88 Stat. 1392; Pub. L. 95–405, §16, Sept. 30, 1978, 92 Stat. 873; Pub. L. 97–444, title II, §222, Jan. 11, 1983, 96 Stat. 2309; Pub. L. 102–546, title II, §205, title III, §§304, 305, title IV, §402(7), Oct. 28, 1992, 106 Stat. 3600, 3623, 3624; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(18), title II, §253(a)], Dec. 21, 2000, 114 Stat. 2763, 2763A-410, 2763A-449; Pub. L. 110–234, title XIII, §13105(g), May 22, 2008, 122 Stat. 1434; Pub. L. 110–246, §4(a), title XIII, §13105(g), June 18, 2008, 122 Stat. 1664, 2196; Pub. L. 111–203, title VII, §725(f), July 21, 2010, 124 Stat. 1694.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Section is based on section 8 of Act Sept. 21, 1922, as amended generally by Pub. L. 95–405, §16. Prior to such general amendment, section was comprised of the first paragraph of section 8, and the second, third, and fourth pars. of section 8 were classified to sections 12–1, 12–2, and 12–3 of this title, respectively.
Subsection (h), which required the Commodity Futures Trading Commission to submit an annual report to Congress detailing the operations of the Commission, terminated, effective May 15, 2000, pursuant to section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance. See, also, page 158 of House Document No. 103–7.
Amendments
2010—Subsec. (e). Pub. L. 111–203, in last sentence, inserted ", central bank and ministries," after "department" wherever appearing and substituted ", is a party." for ". is a party."
2008—Subsec. (a)(1). Pub. L. 110–246, §13105(g), in concluding provisions, struck out "commenced" after "receivership proceeding" and inserted "commenced" after "in a judicial proceeding".
2000—Subsec. (a)(3). Pub. L. 106–554, §1(a)(5) [title II, §253(a)], added par. (3).
Subsec. (c). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(18)], in first sentence, substituted "registered entity" for "board of trade".
1992—Subsec. (a). Pub. L. 102–546, §§205, 304(1), designated existing provisions as par. (1), inserted provisions at end relating to disclosure of information received from foreign futures authorities, and added par. (2).
Subsec. (b). Pub. L. 102–546, §304(2), inserted at end "This subsection shall not apply to the disclosure of data or information obtained by the Commission from a foreign futures authority."
Subsec. (e). Pub. L. 102–546, §305, inserted references to foreign futures authority in fifth and last sentences.
Subsec. (f). Pub. L. 102–546, §402(7), substituted "subpoena" for "subpena" wherever appearing and "subpoenas" for "subpenas" in last sentence.
1983—Subsec. (a). Pub. L. 97–444, §222(1), inserted proviso authorizing Commission to withhold from public disclosure any data or information concerning or obtained in connection with any pending investigation of any person.
Subsec. (b). Pub. L. 97–444, §222(2), inserted references to receivership proceedings involving a receiver appointed in a judicial proceeding brought under this chapter and to bankruptcy proceedings in which the Commission has intervened or in which Commission has right to appear and be heard under title 11.
Subsec. (e). Pub. L. 97–444, §222(3), struck out "of the Executive Branch" after "Upon the request of any department or agency" and inserted "Upon the request of any department or agency of any State or any political subdivision thereof, acting within the scope of its jurisdiction, or any department or agency of any foreign government or any political subdivision thereof, acting within the scope of its jurisdiction, the Commission may furnish to such department or agency any information in the possession of the Commission obtained in connection with the administration of this chapter. Any information furnished to any department or agency of any State or political subdivision thereof shall not be disclosed by such department or agency except in connection with an adjudicatory action or proceeding brought under this chapter or the laws of such State or political subdivision to which such State or political subdivision or any department or agency thereof is a party. The Commission shall not furnish any information to a department or agency of a foreign government or political subdivision thereof unless the Commission is satisfied that the information will not be disclosed by such department or agency except in connection with an adjudicatory action or proceeding brought under the laws of such foreign government or political subdivision to which such foreign government or political subdivision or any department or agency thereof is a party."
Subsecs. (f), (g). Pub. L. 97–444, §222(5), added subsecs. (f) and (g). Former subsecs. (f) and (g) were redesignated (h) and (i), respectively.
Subsecs. (h), (i). Pub. L. 97–444, §222(4), redesignated former subsecs. (f) and (g) as (h) and (i), respectively.
1978—Pub. L. 95–405 consolidated under this section provisions formerly contained in this section and sections 12–1, 12–2, and 12–3 of this title, generally revised provisions thus consolidated to clarify and expand disclosure to public of traders and their positions on boards of trade, and divided provisions thus consolidated and revised into subsecs. (a) to (g).
1974—Pub. L. 93–463 substituted "Commission" for "Secretary of Agriculture", "it" for "he", "its" for "his", and "It" for "He".
1968—Pub. L. 90–258 authorized investigations to ascertain facts regarding operations of other persons subject to any provisions of this chapter.
1936—Act June 15, 1936, substituted "commodity" for "grain" wherever appearing.
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–405 effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as a note under section 2 of this title.
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–258 effective 120 days after Feb. 19, 1968, see section 28 of Pub. L. 90–258, set out as a note under section 2 of this title.
Effective Date of 1936 Amendment
Amendment by act June 15, 1936, effective 90 days after June 15, 1936, see section 13 of act June 15, 1936, set out as a note under section 1 of this title.
§§12–1 to 12–3. Omitted
Editorial Notes
Codification
Sections 12–1 to 12–3 comprised the second, third, and fourth pars., respectively, of section 8 of the Commodity Exchange Act, Sept. 21, 1922, ch. 369, §8, 42 Stat. 1003. Such section 8 was amended generally by Pub. L. 95–405, §16, Sept. 30, 1978, 92 Stat. 873, and is classified in its entirety to section 12 of this title.
Section 12–1, as added Dec. 19, 1947, ch. 523, 61 Stat. 941; amended Feb. 19, 1968, Pub. L. 90–258, §19(b), 82 Stat. 32; Oct. 23, 1974, Pub. L. 93–463, title I, §103(a), (e), (f), 88 Stat. 1392, related to disclosure of names of traders on commodity markets by Commission. See section 12(e) of this title.
Section 12–2, as added Oct. 23, 1974, Pub. L. 93–463, title I, §105, 88 Stat. 1392, required an annual report to Congress. See Codification note under section 12 of this title.
Section 12–3, as added Oct. 23, 1974, Pub. L. 93–463, title I, §105, 88 Stat. 1392, related to reviews and audits by Comptroller General. See section 12(i) of this title.
§12a. Registration of commodity dealers and associated persons; regulation of registered entities
The Commission is authorized—
(1) to register futures commission merchants, associated persons of futures commission merchants, introducing brokers, associated persons of introducing brokers, commodity trading advisors, associated persons of commodity trading advisors, commodity pool operators, associated persons of commodity pool operators, floor brokers, and floor traders upon application in accordance with rules and regulations and in the form and manner to be prescribed by the Commission, which may require the applicant, and such persons associated with the applicant as the Commission may specify, to be fingerprinted and to submit, or cause to be submitted, such fingerprints to the Attorney General for identification and appropriate processing, and in connection therewith to fix and establish from time to time reasonable fees and charges for registrations and renewals thereof: Provided, That notwithstanding any provision of this chapter, the Commission may grant a temporary license to any applicant for registration with the Commission pursuant to such rules, regulations, or orders as the Commission may adopt, except that the term of any such temporary license shall not exceed six months from the date of its issuance;
(2) upon notice, but without a hearing and pursuant to such rules, regulations, or orders as the Commission may adopt, to refuse to register, to register conditionally, or to suspend or place restrictions upon the registration of, any person and with such a hearing as may be appropriate to revoke the registration of any person—
(A) if a prior registration of such person in any capacity has been suspended (and the period of such suspension has not expired) or has been revoked;
(B) if registration of such person in any capacity has been refused under the provisions of paragraph (3) of this section within five years preceding the filing of the application for registration or at any time thereafter;
(C) if such person is permanently or temporarily enjoined by order, judgment, or decree of any court of competent jurisdiction (except that registration may not be revoked solely on the basis of such temporary order, judgment, or decree), including an order entered pursuant to an agreement of settlement to which the Commission or any Federal or State agency or other governmental body is a party, from (i) acting as a futures commission merchant, introducing broker, floor broker, floor trader, commodity trading advisor, commodity pool operator, associated person of any registrant under this chapter, securities broker, securities dealer, municipal securities broker, municipal securities dealer, transfer agent, clearing agency, securities information processor, investment adviser, investment company, or affiliated person or employee of any of the foregoing or (ii) engaging in or continuing any activity where such activity involves embezzlement, theft, extortion, fraud, fraudulent conversion, misappropriation of funds, securities or property, forgery, counterfeiting, false pretenses, bribery, gambling, or any transaction in or advice concerning contracts of sale of a commodity for future delivery, concerning matters subject to Commission regulation under section 6c or 23 of this title, or concerning securities;
(D) if such person has been convicted within ten years preceding the filing of the application for registration or at any time thereafter of any felony that (i) involves any transactions or advice concerning any contract of sale of a commodity for future delivery, or any activity subject to Commission regulation under section 6c or 23 of this title, or concerning a security, (ii) arises out of the conduct of the business of a futures commission merchant, introducing broker, floor broker, floor trader, commodity trading advisor, commodity pool operator, associated person of any registrant under this chapter, securities broker, securities dealer, municipal securities broker, municipal securities dealer, transfer agent, clearing agency, securities information processor, investment adviser, investment company, or an affiliated person or employee of any of the foregoing, (iii) involves embezzlement, theft, extortion, fraud, fraudulent conversion, misappropriation of funds, securities or property, forgery, counterfeiting, false pretenses, bribery, or gambling, or (iv) involves the violation of section 152, 1001, 1341, 1342, 1343, 1503, 1623, 1961, 1962, 1963, or 2314, or chapter 25, 47, 95, or 96 of title 18, or section 7201 or 7206 of title 26;
(E) if such person, within ten years preceding the filing of the application or at any time thereafter, has been found in a proceeding brought by the Commission or any Federal or State agency or other governmental body, or by agreement of settlement to which the Commission or any Federal or State agency or other governmental body is a party, (i) to have violated any provision of this chapter, the Securities Act of 1933 [15 U.S.C. 77a et seq.], the Securities Exchange Act of 1934 [15 U.S.C. 78a et seq.], the Public Utility Holding Company Act of 1935,1 the Trust Indenture Act of 1939 [15 U.S.C. 77aaa et seq.], the Investment Advisers Act of 1940 [15 U.S.C. 80b–1 et seq.], the Investment Company Act of 1940 [15 U.S.C. 80a–1 et seq.], the Securities Investors 2 Protection Act of 1970 [15 U.S.C. 78aaa et seq.], the Foreign Corrupt Practices Act of 1977, chapter 96 of title 18, or any similar statute of a State or foreign jurisdiction, or any rule, regulation, or order under any such statutes, or the rules of the Municipal Securities Rulemaking Board where such violation involves embezzlement, theft, extortion, fraud, fraudulent conversion, misappropriation of funds, securities or property, forgery, counterfeiting, false pretenses, bribery, or gambling, or (ii) to have willfully aided, abetted, counseled, commanded, induced, or procured such violation by any other person;
(F) if such person is subject to an outstanding order of the Commission denying privileges on any registered entity to such person, denying, suspending, or revoking such person's membership in any registered entity or registered futures association, or barring or suspending such person from being associated with a registrant under this chapter or with a member of a registered entity or with a member of a registered futures association;
(G) if, as to any of the matters set forth in this paragraph and paragraph (3), such person willfully made any materially false or misleading statement or omitted to state any material fact in such person's application or any update thereto; or
(H) if refusal, suspension, or revocation of the registration of any principal of such person would be warranted because of a statutory disqualification listed in this paragraph:
Provided, That such person may appeal from a decision to refuse registration, condition registration, suspend, revoke or to place restrictions upon registration made pursuant to the provisions of this paragraph in the manner provided in section 9 of this title; and
Provided, further, That for the purposes of paragraphs (2) and (3) of this section, "principal" shall mean, if the person is a partnership, any general partner or, if the person is a corporation, any officer, director, or beneficial owner of at least 10 per centum of the voting shares of the corporation, and any other person that the Commission by rule, regulation, or order determines has the power, directly or indirectly, through agreement or otherwise, to exercise a controlling influence over the activities of such person which are subject to regulation by the Commission;
(3) to refuse to register or to register conditionally any person, if it is found, after opportunity for hearing, that—
(A) such person has been found by the Commission or by any court of competent jurisdiction to have violated, or has consented to findings of a violation of, any provision of this chapter, or any rule, regulation, or order thereunder (other than a violation set forth in paragraph (2) of this section), or to have willfully aided, abetted, counseled, commanded, induced, or procured the violation by any other person of any such provision;
(B) such person has been found by any court of competent jurisdiction or by any Federal or State agency or other governmental body, or by agreement of settlement to which any Federal or State agency or other governmental body is a party, (i) to have violated any provision of the Securities Act of 1933 [15 U.S.C. 77a et seq.], the Securities Exchange Act of 1934 [15 U.S.C. 78a et seq.], the Public Utility Holding Company Act of 1935,1 the Trust Indenture Act of 1939 [15 U.S.C. 77aaa et seq.], the Investment Advisers Act of 1940 [15 U.S.C. 80b–1 et seq.], the Investment Company Act of 1940 [15 U.S.C. 80a–1 et seq.], the Securities Investors 3 Protection Act of 1970 [15 U.S.C. 78aaa et seq.], the Foreign Corrupt Practices Act of 1977, or any similar statute of a State or foreign jurisdiction, or any rule, regulation, or order under any such statutes, or the rules of the Municipal Securities Rulemaking Board or (ii) to have willfully aided, abetted, counseled, commanded, induced, or procured such violation by any other person;
(C) such person failed reasonably to supervise another person, who is subject to such person's supervision, with a view to preventing violations of this chapter, or of any of the statutes set forth in subparagraph (B) of this paragraph, or of any of the rules, regulations, or orders thereunder, and the person subject to supervision committed such a violation: Provided, That no person shall be deemed to have failed reasonably to supervise another person, within the meaning of this subparagraph if (i) there have been established procedures, and a system for applying such procedures, which would reasonably be expected to prevent and detect, insofar as practicable, any such violation by such other person and (ii) such person has reasonably discharged the duties and obligations incumbent upon that person, as supervisor, by reason of such procedures and system, without reasonable cause to believe that such procedures and system were not being complied with;
(D) such person pleaded guilty to or was convicted of a felony other than a felony of the type specified in paragraph (2)(D) of this section, or was convicted of a felony of the type specified in paragraph (2)(D) of this section more than ten years preceding the filing of the application;
(E) such person pleaded guilty to or was convicted of any misdemeanor which (i) involves any transaction or advice concerning any contract of sale of a commodity for future delivery or any activity subject to Commission regulation under section 6c or 23 of this title or concerning a security, (ii) arises out of the conduct of the business of a futures commission merchant, introducing broker, floor broker, floor trader, commodity trading advisor, commodity pool operator, associated person of any registrant under this chapter, securities broker, securities dealer, municipal securities broker, municipal securities dealer, transfer agent, clearing agency, securities information processor, investment adviser, investment company, or an affiliated person or employee of any of the foregoing, (iii) involves embezzlement, theft, extortion, fraud, fraudulent conversion, misappropriation of funds, securities or property, forgery, counterfeiting, false pretenses, bribery, or gambling, (iv) involves the violation of section 152, 1341, 1342, or 1343 or chapter 25, 47, 95, or 96 of title 18, or section 7203, 7204, 7205, or 7207 of title 26;
(F) such person was debarred by any agency of the United States from contracting with the United States;
(G) such person willfully made any materially false or misleading statement or willfully omitted to state any material fact in such person's application or any update thereto, in any report required to be filed with the Commission by this chapter or the regulations thereunder, in any proceeding before the Commission or in any registration disqualification proceeding;
(H) such person has pleaded nolo contendere to criminal charges of felonious conduct, or has been convicted in a State court, in a United States military court, or in a foreign court of conduct which would constitute a felony under Federal law if the offense had been committed under Federal jurisdiction;
(I) in the case of an applicant for registration in any capacity for which there are minimum financial requirements prescribed under this chapter or under the rules or regulations of the Commission, such person has not established that such person meets such minimum financial requirements;
(J) such person is subject to an outstanding order denying, suspending, or expelling such person from membership in a registered entity, a registered futures association, any other self-regulatory organization, or any foreign regulatory body that the Commission recognizes as having a comparable regulatory program or barring or suspending such person from being associated with any member or members of such registered entity, association, self-regulatory organization, or foreign regulatory body;
(K) such person has been found by any court of competent jurisdiction or by any Federal or State agency or other governmental body, or by agreement of settlement to which any Federal or State agency or other governmental body is a party, (i) to have violated any statute or any rule, regulation, or order thereunder which involves embezzlement, theft, extortion, fraud, fraudulent conversion, misappropriation of funds, securities or property, forgery, counterfeiting, false pretenses, bribery, or gambling or (ii) to have willfully aided, abetted, counseled, commanded, induced or procured such violation by any other person;
(L) such person has associated with such person any other person and knows, or in the exercise of reasonable care should know, of facts regarding such other person that are set forth as statutory disqualifications in paragraph (2) of this section, unless such person has notified the Commission of such facts and the Commission has determined that such other person should be registered or temporarily licensed;
(M) there is other good cause; or
(N) any principal, as defined in paragraph (2) of this section, of such person has been or could be refused registration:
Provided, That pending final determination under this paragraph, registration shall not be granted: Provided further, That such person may appeal from a decision to refuse registration or to condition registration made pursuant to this paragraph in the manner provided in section 9 of this title;
(4) in accordance with the procedure provided for in section 9 of this title, to suspend, revoke, or place restrictions upon the registration of any person registered under this chapter if cause exists under paragraph (3) of this section which would warrant a refusal of registration of such person, and to suspend or revoke the registration of any futures commission merchant or introducing broker who shall knowingly accept any order for the purchase or sale of any commodity for future delivery on or subject to the rules of any registered entity from any person if such person has been denied trading privileges on any registered entity by order of the Commission under section 9 of this title and the period of denial specified in such order shall not have expired: Provided, That such person may appeal from a decision to suspend, revoke, or place restrictions upon registration made pursuant to this paragraph in the manner provided in section 9 of this title;
(5) to make and promulgate such rules and regulations as, in the judgment of the Commission, are reasonably necessary to effectuate any of the provisions or to accomplish any of the purposes of this chapter;
(6) to communicate to the proper committee or officer of any registered entity, registered futures association, or self-regulatory organization as defined in section 3(a)(26) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(26)], notwithstanding the provisions of section 12 of this title, the full facts concerning any transaction or market operation, including the names of parties thereto, which in the judgment of the Commission disrupts or tends to disrupt any market or is otherwise harmful or against the best interests of producers, consumers, or investors, or which is necessary or appropriate to effectuate the purposes of this chapter: Provided, That any information furnished by the Commission under this paragraph shall not be disclosed by such registered entity, registered futures association, or self-regulatory organization except in any self-regulatory action or proceeding;
(7) to alter or supplement the rules of a registered entity insofar as necessary or appropriate by rule or regulation or by order, if after making the appropriate request in writing to a registered entity that such registered entity effect on its own behalf specified changes in its rules and practices, and after appropriate notice and opportunity for hearing, the Commission determines that such registered entity has not made the changes so required, and that such changes are necessary or appropriate for the protection of persons producing, handling, processing, or consuming any commodity traded for future delivery on such registered entity, or the product or byproduct thereof, or for the protection of traders or to insure fair dealing in commodities traded for future delivery on such registered entity. Such rules, regulations, or orders may specify changes with respect to such matters as—
(A) terms or conditions in contracts of sale to be executed on or subject to the rules of such registered entity;
(B) the form or manner of execution of purchases and sales for future delivery;
(C) other trading requirements;
(D) margin requirements, provided that the rules, regulations, or orders shall—
(i) be limited to protecting the financial integrity of the derivatives clearing organization;
(ii) be designed for risk management purposes to protect the financial integrity of transactions; and
(iii) not set specific margin amounts;
(E) safeguards with respect to the financial responsibility of members;
(F) the manner, method, and place of soliciting business, including the content of such solicitations; and
(G) the form and manner of handling, recording, and accounting for customers' orders, transactions, and accounts;
(8) to make and promulgate such rules and regulations with respect to those persons registered under this chapter, who are not members of a registered entity, as in the judgment of the Commission are reasonably necessary to protect the public interest and promote just and equitable principles of trade, including but not limited to the manner, method, and place of soliciting business, including the content of such solicitation;
(9) to direct the registered entity, whenever it has reason to believe that an emergency exists, to take such action as in the Commission's judgment is necessary to maintain or restore orderly trading in or liquidation of any futures contract, including, but not limited to, the setting of temporary emergency margin levels on any futures contract, and the fixing of limits that may apply to a market position acquired in good faith prior to the effective date of the Commission's action. The term "emergency" as used herein shall mean, in addition to threatened or actual market manipulations and corners, any act of the United States or a foreign government affecting a commodity or any other major market disturbance which prevents the market from accurately reflecting the forces of supply and demand for such commodity. Any action taken by the Commission under this paragraph shall be subject to review only in the United States Court of Appeals for the circuit in which the party seeking review resides or has its principal place of business, or in the United States Court of Appeals for the District of Columbia Circuit. Such review shall be based upon an examination of all the information before the Commission at the time the determination was made. The court reviewing the Commission's action shall not enter a stay or order of mandamus unless it has determined, after notice and hearing before a panel of the court, that the agency action complained of was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Nothing herein shall be deemed to limit the meaning or interpretation given by a registered entity to the terms "market emergency", "emergency", or equivalent language in its own bylaws, rules, regulations, or resolutions;
(10) to authorize any person to perform any portion of the registration functions under this chapter, in accordance with rules, notwithstanding any other provision of law, adopted by such person and submitted to the Commission for approval or, if applicable, for review pursuant to section 21(j) of this title, and subject to the provisions of this chapter applicable to registrations granted by the Commission; and
(11)(A) by written notice served on the person and pursuant to such rules, regulations, and orders as the Commission may adopt, to suspend or modify the registration of any person registered under this chapter who is charged (in any information, indictment, or complaint authorized by a United States attorney or an appropriate official of any State) with the commission of or participation in a crime involving a violation of this chapter, or a violation of any other provision of Federal or State law that would reflect on the honesty or the fitness of the person to act as a fiduciary (including an offense specified in subparagraph (D) or (E) of paragraph (2)) that is punishable by imprisonment for a term exceeding one year, if the Commission determines that continued registration of the person may pose a threat to the public interest or may threaten to impair public confidence in any market regulated by the Commission.
(B) Prior to the suspension or modification of the registration of a person under this paragraph, the person shall be afforded an opportunity for a hearing at which the Commission shall have the burden of showing that the continued registration of the person does, or is likely to, pose a threat to the public interest or threaten to impair public confidence in any market regulated by the Commission.
(C) Any notice of suspension or modification issued under this paragraph shall remain in effect until such information, indictment, or complaint is disposed of or until terminated by the Commission.
(D) On disposition of such information, indictment, or complaint, the Commission may issue and serve on such person an order pursuant to paragraph (2) or (4) to suspend, restrict, or revoke the registration of such person.
(E) A finding of not guilty or other disposition of the charge shall not preclude the Commission from thereafter instituting any other proceedings under this chapter.
(F) A person aggrieved by an order issued under this paragraph may obtain review of such order in the same manner and on the same terms and conditions as are provided in section 8(b) of this title.
(Sept. 21, 1922, ch. 369, §8a, as added June 15, 1936, ch. 545, §10, 49 Stat. 1500; amended Aug. 5, 1955, ch. 574, 69 Stat. 535; Pub. L. 90–258, §§20–23, Feb. 19, 1968, 82 Stat. 32, 33; Pub. L. 93–463, title I, §103(a), title II, §§204(c), 205(c), 213–215, Oct. 23, 1974, 88 Stat. 1392, 1397, 1400, 1404; Pub. L. 95–405, §17, Sept. 30, 1978, 92 Stat. 874; Pub. L. 97–444, title I, §104, title II, §§223–225, Jan. 11, 1983, 96 Stat. 2297, 2310-2315; Pub. L. 102–546, title II, §§207(b)(3), (4), 208, 209(b)(6), 227, title IV, §402(10), Oct. 28, 1992, 106 Stat. 3604, 3607, 3618, 3625; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(19)], Dec. 21, 2000, 114 Stat. 2763, 2763A-410; Pub. L. 111–203, title VII, §736, July 21, 2010, 124 Stat. 1722.)
Editorial Notes
References in Text
The Securities Act of 1933, referred to in pars. (2)(E) and (3)(B), is title I of act May 27, 1933, ch. 38, 48 Stat. 74, which is classified generally to subchapter I (§77a et seq.) of chapter 2A of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 77a of Title 15 and Tables.
The Securities Exchange Act of 1934, referred to in pars. (2)(E) and (3)(B), is act June 6, 1934, ch. 404, 48 Stat. 881, which is classified principally to chapter 2B (§78a et seq.) of Title 15. For complete classification of this Act to the Code, see section 78a of Title 15 and Tables.
The Public Utility Holding Company Act of 1935, referred to in pars. (2)(E) and (3)(B), is title I of act Aug. 26, 1935, ch. 687, 49 Stat. 803, which was classified generally to chapter 2C (§79 et seq.) of Title 15, Commerce and Trade, prior to repeal by Pub. L. 109–58, title XII, §1263, Aug. 8, 2005, 119 Stat. 974. For complete classification of this Act to the Code, see Tables.
The Trust Indenture Act of 1939, referred to in pars. (2)(E) and (3)(B), is title III of act May 27, 1933, ch. 38, as added Aug. 3, 1939, ch. 411, 53 Stat. 1149, which is classified generally to subchapter III (§77aaa et seq.) of chapter 2A of Title 15. For complete classification of this Act to the Code, see section 77aaa of Title 15 and Tables.
The Investment Advisers Act of 1940, referred to in pars. (2)(E) and (3)(B), is title II of act Aug. 22, 1940, ch. 686, 54 Stat. 847, which is classified generally to subchapter II (§80b–1 et seq.) of chapter 2D of Title 15. For complete classification of this Act to the Code, see section 80b–20 of Title 15 and Tables.
The Investment Company Act of 1940, referred to in pars. (2)(E) and (3)(B), is title I of act Aug. 22, 1940, ch. 686, 54 Stat. 789, which is classified generally to subchapter I (§80a–1 et seq.) of chapter 2D of Title 15. For complete classification of this Act to the Code, see section 80a–51 of Title 15 and Tables.
The Securities Investor Protection Act of 1970, referred to in pars. (2)(E) and (3)(B), is Pub. L. 91–598, Dec. 30, 1970, 84 Stat. 1636, which is classified generally to chapter 2B–1 (§78aaa et seq.) of Title 15. For complete classification of this Act to the Code, see section 78aaa of Title 15 and Tables.
The Foreign Corrupt Practices Act of 1977, referred to in pars. (2)(E) and (3)(B), is title I of Pub. L. 95–213, Dec. 19, 1977, 91 Stat. 1494, which enacted sections 78dd–1 to 78dd–3 of Title 15, Commerce and Trade, and amended sections 78m and 78ff of Title 15. For complete classification of this Act to the Code, see Short Title of 1977 Amendment note set out under section 78a of Title 15 and Tables.
Amendments
2010—Par. (7)(C). Pub. L. 111–203, §736(1), struck out ", excepting the setting of levels of margin" after "requirements".
Par. (7)(D) to (G). Pub. L. 111–203, §736(2), (3), added subpar. (D) and redesignated former subpars. (D) to (F) as (E) to (G), respectively.
2000—Pub. L. 106–554, §1(a)(5) [title I, §123(a)(19)(A)], substituted "registered entity" for "contract market" wherever appearing.
Par. (2)(F). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(19)(B)], substituted "privileges" for "trading privileges".
1992—Par. (1). Pub. L. 102–546, §207(b)(3), substituted "floor brokers, and floor traders" for "and floor brokers".
Par. (2). Pub. L. 102–546, §209(b)(6)(A), made technical amendment to reference to sections 9 and 15 of this title in concluding provisions to reflect change in reference to corresponding section of original act.
Par. (2)(C)(i). Pub. L. 102–546, §207(b)(4), inserted "floor trader," after "floor broker,".
Par. (2)(C)(ii). Pub. L. 102–546, §208(a), amended cl. (ii) generally. Prior to amendment, cl. (ii) read as follows: "engaging in or continuing any activity involving any transaction in or advice concerning contracts of sale of a commodity for future delivery, concerning matters subject to Commission regulation under section 6c or 23 of this title, or concerning securities".
Par. (2)(D)(ii). Pub. L. 102–546, §207(b)(4), inserted "floor trader," after "floor broker,".
Par. (2)(D)(iv). Pub. L. 102–546, §208(b), inserted references to sections 1001, 1503, 1623, 1961 to 1963, and 2314 of title 18 and sections 7201 and 7206 of title 26.
Par. (2)(E). Pub. L. 102–546, §208(c), substituted "in a proceeding brought" for "by any court of competent jurisdiction," and in cl. (i) inserted reference to chapter 96 of title 18.
Par. (2)(G). Pub. L. 102–546, §208(d), substituted "this paragraph and paragraph (3)" for "subparagraphs (A) through (F) of this paragraph", "materially false" for "material false", and "application or any update thereto" for "application".
Par. (3). Pub. L. 102–546, §209(b)(6)(B), made technical amendment to reference to sections 9 and 15 of this title in concluding provisions to reflect change in reference to corresponding section of original act.
Par. (3)(D). Pub. L. 102–546, §208(e), inserted "pleaded guilty to or" after "person", substituted "section," for "section within ten years preceding the filing of the application or at any time thereafter," and "felony of the type specified in paragraph (2)(D) of this section more" for "felony, including a felony of the type specified in paragraph (2)(D) of this section, more".
Par. (3)(E). Pub. L. 102–546, §208(f)(1), (2), inserted "pleaded guilty to or" after "person" and struck out "within ten years preceding the filing of the application for registration or at any time thereafter" before "of any misdemeanor".
Par. (3)(E)(ii). Pub. L. 102–546, §207(b)(4), inserted "floor trader," after "floor broker,".
Par. (3)(E)(iv). Pub. L. 102–546, §208(f)(3), inserted reference to sections 7203 to 7205 and 7207 of title 26.
Par. (3)(G). Pub. L. 102–546, §208(g)(5), which directed the insertion of "or in any registration disqualification proceeding" after "Commission", was executed by making the insertion after "Commission" the second time it appeared to reflect the probable intent of Congress.
Pub. L. 102–546, §208(g)(1)–(4), substituted "materially false" for "material false", "application or any update thereto," for "application," and struck out "or" after "thereunder,".
Par. (3)(H). Pub. L. 102–546, §208(h), inserted ", in a United States military court," after "State court".
Par. (3)(J). Pub. L. 102–546, §208(i), struck out "or" before "any other self-regulatory", inserted "or any foreign regulatory body that the Commission recognizes as having a comparable regulatory program", and substituted "association, self-regulatory organization, or foreign regulatory body" for "association, or self-regulatory organization".
Par. (4). Pub. L. 102–546, §209(b)(6)(C), made technical amendment to references to sections 9 and 15 of this title in concluding provisions to reflect change in references to corresponding section of original act.
Par. (5). Pub. L. 102–546, §402(10)(A), struck out "and" at end.
Par. (7). Pub. L. 102–546, §402(10)(B), substituted "matters as—" for "matters as:" in introductory provisions.
Par. (11). Pub. L. 102–546, §227, added par. (11).
1983—Par. (1). Pub. L. 97–444, §223, substituted authorization for registration of "associated persons of futures commission merchants" for "and persons associated therewith as described in section 6k of this title"; authorized registration of introducing brokers, associated persons of introducing brokers, associated persons of commodity trading advisors and associated persons of commodity pool operators, substituted "such persons" for "any persons" before "associated with the applicant", and authorized establishment of registration and renewal fees and charges and granting of temporary licenses for terms not exceeding six months from date of issuance.
Par. (2). Pub. L. 97–444, §224(1), added par. (2) and struck out prior par. (2) which authorized Commission "to refuse to register any person—
"(A) if the prior registration of such person has been suspended (and the period of such suspension shall not have expired) or has been revoked;
"(B) if it is found, after opportunity for hearing, that the applicant is unfit to engage in the business for which the application for registration is made, (i) because such applicant, or, if the applicant is a partnership, any general partner, or, if the applicant is a corporation, any officer or holder of more than 10 per centum of the stock, at any time engaged in any practice of the character prohibited by this chapter or was convicted of a felony in any State or Federal court, or was debarred by any agency of the United States from contracting with the United States, or the applicant willfully made any material false or misleading statement in his application or willfully omitted to state any material fact in connection with the application, or (ii) for other good cause shown; or
"(C) in the case of an applicant for registration as futures commission merchant, if it is found after opportunity for hearing that the applicant has not established that he meets the minimum financial requirements under section 6f of this title: Provided, That pending final determination under subparagraph (B) or (C), registration shall not be granted: And provided further, That the applicant may appeal from the refusal of registration under subparagraph (B) or (C) in the manner provided in sections 9 and 15 of this title; and".
Par. (3). Pub. L. 97–444, §224(3), added par. (3). Former par. (3) redesignated (4).
Par. (4). Pub. L. 97–444, §224(2), (4), struck out par. (4) provision for establishment of registration and renewal fees and charges, covered in par. (1), redesignated par. (3) as (4), and in redesignated par. (4), authorized placing of restrictions on registrations, suspension or revocation of registration of an introducing broker and appeals from registration decisions made pursuant to this paragraph as provided in sections 9 and 15 of this title, and substituted "if cause exists under paragraph (3) of this section" for "if cause exists under paragraph (2)(B) or (C) of this section".
Par. (6). Pub. L. 97–444, §104, authorized communication of full facts respecting transactions or market operations to registered futures associations and self-regulatory organizations, included concern for investors, provided for communications when necessary or appropriate to effectuate purposes of this chapter, and prohibited disclosure of furnished information except in self-regulatory actions or proceedings.
Pars. (6) to (8). Pub. L. 97–444, §224(5), struck out "and" at end of pars. (6), (7), and (8).
Par. (9). Pub. L. 97–444, §225, authorized Commission to direct the contract market to take certain action, including, but not limited to, setting of temporary emergency margin levels on any futures contract, and fixing of limits that may apply to a market position acquired in good faith prior to the effective date of Commission's action and inserted provisions respecting judicial review.
Par. (10). Pub. L. 97–444, §224(6), added par. (10).
1978—Par. (1). Pub. L. 95–405, §17(1), inserted ", which may require the applicant, and any persons associated with the applicant as the Commission may specify, to be fingerprinted and to submit, or cause to be submitted, such fingerprints to the Attorney General for identification and appropriate processing" after "by the Commission".
Par. (6). Pub. L. 95–405, §17(2), struck out "and to publish" after "any contract market".
1974—Pub. L. 93–463, §103(a), substituted "Commission" for "Secretary of Agriculture" in provisions preceding par. (1).
Par. (1). Pub. L. 93–463, §§103(a), 204(c), 205(c), substituted "Commission" for "Secretary of Agriculture", inserted "and persons associated therewith as described in section 6k of this title," after "futures commission merchants", and inserted "commodity trading advisors, commodity pool operators" before "and floor brokers".
Pars. (3), (5), (6). Pub. L. 93–463, §103(a), substituted "Commission" for "Secretary of Agriculture".
Par. (7). Pub. L. 93–463, §213, amended par. (7) generally, substituting provisions covering the altering or supplementing of the rules of a contract market for provisions covering the disapproval of bylaws, rules, regulations, and resolutions made, issued, or proposed by a contract market.
Par. (8). Pub. L. 93–463, §214, added par. (8).
Par. (9). Pub. L. 93–463, §215, added par. (9).
1968—Par. (2). Pub. L. 90–258, §20, designated existing provisions as subpar. (A), substituted "if the prior registration of such person" for "if such person has violated any of the provisions of this chapter or any of the rules or regulations promulgated by the Secretary of Agriculture hereunder for which the registration of such person" and added subpars. (B) and (C).
Par. (3). Pub. L. 90–258, §21, authorized Secretary of Agriculture, in accordance with procedure provided for in sections 9 and 15 of this title, to suspend or revoke the registration of any person registered under this chapter if cause exists under par. (2)(B) or (C) of this section which would warrant a refusal of registration of such person.
Par. (4). Pub. L. 90–258, §22, struck out authorization for establishment of fees for copies of registration certificates.
Par. (7). Pub. L. 90–258, §23, added par. (7).
1955—Par. (4). Act Aug. 5, 1955, authorized Secretary to fix and establish reasonable fees for registrations and renewals, and struck out provisions which set the fee for each registration and renewal at not more than $10.
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date of 1992 Amendment
Amendment by section 207(b)(3), (4) of Pub. L. 102–546 effective 180 days after Oct. 28, 1992, with Commodity Futures Trading Commission to issue any regulations necessary to implement such amendment no later than 180 days after Oct. 28, 1992, see section 207(c) of Pub. L. 102–546, set out as a note under section 6e of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–405 effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as a note under section 2 of this title.
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–258 effective 120 days after Feb. 19, 1968, see section 28 of Pub. L. 90–258, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 13 of act June 15, 1936, set out as an Effective Date of 1936 Amendment note under section 1 of this title.
1 See References in Text note below.
2 So in original. Probably should be "Investor".
3 So in original. Probably should be "Investor".
§12b. Trading ban violations; prohibition
It shall be unlawful for any person, against whom there is outstanding any order of the Commission prohibiting him from trading on or subject to the rules of any registered entity, to make or cause to be made in contravention of such order, any contract for future delivery of any commodity, on or subject to the rules of any registered entity.
(Sept. 21, 1922, ch. 369, §8b, as added Pub. L. 90–258, §24, Feb. 19, 1968, 82 Stat. 33; amended Pub. L. 93–463, title I, §103(a), Oct. 23, 1974, 88 Stat. 1392; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(20)], Dec. 21, 2000, 114 Stat. 2763, 2763A-410.)
Editorial Notes
Amendments
2000—Pub. L. 106–554 substituted "registered entity" for "contract market" in two places.
1974—Pub. L. 93–463 substituted "Commission" for "Secretary of Agriculture".
Statutory Notes and Related Subsidiaries
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463 see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date
Section effective 120 days after Feb. 19, 1968, see section 28 of Pub. L. 90–258, set out as an Effective Date of 1968 Amendment note under section 2 of this title.
§12c. Disciplinary actions
(a) Action taken; written notice of reasons for action
(1) Any exchange or the Commission if the exchange fails to act, may suspend, expel, or otherwise discipline any person who is a member of that exchange, or deny any person access to the exchange. Any such action shall be taken solely in accordance with the rules of that exchange.
(2) Any suspension, expulsion, disciplinary, or access denial procedure established by an exchange rule shall provide for written notice to the Commission and to the person who is suspended, expelled, or disciplined, or denied access, within thirty days, which includes the reasons for the exchange action in the form and manner the Commission prescribes. An exchange shall make public its findings and the reasons for the exchange action in any such proceeding, including the action taken or the penalty imposed, but shall not disclose the evidence therefor, except to the person who is suspended, expelled, or disciplined, or denied access, and to the Commission.
(b) Review by Commission
The Commission may, in its discretion and in accordance with such standards and procedures as it deems appropriate, review any decision by an exchange whereby a person is suspended, expelled, otherwise disciplined, or denied access to the exchange. In addition, the Commission may, in its discretion and upon application of any person who is adversely affected by any other exchange action, review such action.
(c) Affirmance, modification, set aside, or remand of action
The Commission may affirm, modify, set aside, or remand any exchange decision it reviews pursuant to subsection (b), after a determination on the record whether the action of the exchange was in accordance with the policies of this chapter. Subject to judicial review, any order of the Commission entered pursuant to subsection (b) shall govern the exchange in its further treatment of the matter.
(d) Stay of action
The Commission, in its discretion, may order a stay of any action taken pursuant to subsection (a) pending review thereof.
(e) Major disciplinary rule violations
(1) The Commission shall issue regulations requiring each registered entity to establish and make available to the public a schedule of major violations of any rule within the disciplinary jurisdiction of such registered entity.
(2) The regulations issued by the Commission pursuant to this subsection shall prohibit, for a period of time to be determined by the Commission, any individual who is found to have committed any major violation from service on the governing board of any registered entity or registered futures association, or on any disciplinary committee thereof.
(Sept. 21, 1922, ch. 369, §8c, as added Pub. L. 93–463, title II, §216, Oct. 23, 1974, 88 Stat. 1405; amended Pub. L. 95–405, §18, Sept. 30, 1978, 92 Stat. 874; Pub. L. 102–546, title II, §206(a)(2), Oct. 28, 1992, 106 Stat. 3602; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(20)], Dec. 21, 2000, 114 Stat. 2763, 2763A-410.)
Editorial Notes
Amendments
2000—Subsec. (e). Pub. L. 106–554 substituted "registered entity" for "contract market" wherever appearing.
1992—Pub. L. 102–546 redesignated pars. (1) to (4) as subsecs. (a) to (d), respectively, in subsec. (a) redesignated subpars. (A) and (B) as pars. (1) and (2), respectively, in subsec. (c) substituted references to subsection (b) for references to paragraph (2), in subsec. (d) substituted reference to subsection (a) for reference to paragraph (1), and added subsec. (e).
1978—Par. (1)(B). Pub. L. 95–405 substituted "An exchange shall make public its findings and the reasons for the exchange action in any such proceeding, including the action taken or the penalty imposed, but shall not disclose the evidence therefor, except to the person who is suspended, expelled, or disciplined or denied access, and to the Commission" for "Otherwise the notice and reasons shall be kept confidential".
Statutory Notes and Related Subsidiaries
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–405 effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 418 of Pub. L. 93–463, set out as an Effective Date of 1968 Amendment note under section 2 of this title.
§12d. Commission action for noncompliance with export sales reporting requirements
The Commission may, in accordance with the procedures provided for in this chapter, refuse to register, register conditionally, or suspend, place restrictions upon, or revoke the registration of, any person, and may bar for any period as it deems appropriate any person from using or participating in any manner in any market regulated by the Commission, if such person is subject to a final decision or order of any court of competent jurisdiction or agency of the United States finding such person to have knowingly violated any provision of the export sales reporting requirements of section 612c–3 1 of this title, or of any regulation issued thereunder.
(Sept. 21, 1922, ch. 369, §8d, as added Pub. L. 97–444, title II, §226, Jan. 11, 1983, 96 Stat. 2316.)
Editorial Notes
References in Text
Section 612c–3 of this title, referred to in text, was repealed by Pub. L. 101–624, title XV, §1578, Nov. 28, 1990, 104 Stat. 3702.
Statutory Notes and Related Subsidiaries
Effective Date
Section effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as an Effective Date of 1983 Amendment note under section 2 of this title.
1 See References in Text note below.
§12e. Repealed. Pub. L. 106–554, §1(a)(5) [title I, §123(a)(21)], Dec. 21, 2000, 114 Stat. 2763, 2763A-410
Section, act Sept. 21, 1922, ch. 369, §8e, as added Pub. L. 102–546, title II, §202(a), Oct. 28, 1992, 106 Stat. 3598, related to Commission oversight and deficiency orders.
§13. Violations generally; punishment; costs of prosecution
(a) Felonies generally
It shall be a felony punishable by a fine of not more than $1,000,000 or imprisonment for not more than 10 years, or both, together with the costs of prosecution, for:
(1) Any person registered or required to be registered under this chapter, or any employee or agent thereof, to embezzle, steal, purloin, or with criminal intent convert to such person's use or to the use of another, any money, securities, or property having a value in excess of $100, which was received by such person or any employee or agent thereof to margin, guarantee, or secure the trades or contracts of any customer or accruing to such customer as a result of such trades or contracts or which otherwise was received from any customer, client, or pool participant in connection with the business of such person. The word "value" as used in this paragraph means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.
(2) Any person to manipulate or attempt to manipulate the price of any commodity in interstate commerce, or for future delivery on or subject to the rules of any registered entity, or of any swap, or to corner or attempt to corner any such commodity or knowingly to deliver or cause to be delivered for transmission through the mails or interstate commerce by telegraph, telephone, wireless, or other means of communication false or misleading or knowingly inaccurate reports concerning crop or market information or conditions that affect or tend to affect the price of any commodity in interstate commerce, or knowingly to violate the provisions of section 6, section 6b, subsections (a) through (e) of subsection 1 6c, section 6h, section 6o(1), or section 23 of this title.
(3) Any person knowingly to make, or cause to be made, any statement in any application, report, or document required to be filed under this chapter or any rule or regulation thereunder or any undertaking contained in a registration statement required under this chapter, or by any registered entity or registered futures association in connection with an application for membership or participation therein or to become associated with a member thereof, which statement was false or misleading with respect to any material fact, or knowingly to omit any material fact required to be stated therein or necessary to make the statements therein not misleading.
(4) Any person willfully to falsify, conceal, or cover up by any trick, scheme, or artifice a material fact, make any false, fictitious, or fraudulent statements or representations, or make or use any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry to a registered entity, board of trade, swap data repository, or futures association designated or registered under this chapter acting in furtherance of its official duties under this chapter.
(5) Any person willfully to violate any other provision of this chapter, or any rule or regulation thereunder, the violation of which is made unlawful or the observance of which is required under the terms of this chapter, but no person shall be subject to imprisonment under this paragraph for the violation of any rule or regulation if such person proves that he had no knowledge of such rule or regulation.
(6) Any person to abuse the end user clearing exemption under section 2(h)(4) of this title, as determined by the Commission.
(b) Suspension of convicted felons
Any person convicted of a felony under this section shall be suspended from registration under this chapter and shall be denied registration or reregistration for five years or such longer period as the Commission may determine, and barred from using, or participating in any manner in, any market regulated by the Commission for five years or such longer period as the Commission shall determine, on such terms and conditions as the Commission may prescribe, unless the Commission determines that the imposition of such suspension, denial of registration or reregistration, or market bar is not required to protect the public interest. The Commission may upon petition later review such disqualification and market bar and for good cause shown reduce the period thereof.
(c) Transactions by Commissioners and Commission employees prohibited
It shall be a felony punishable by a fine of not more than $500,000 or imprisonment for not more than five years, or both, together with the costs of prosecution, for any Commissioner of the Commission or any employee or agent thereof, to participate, directly or indirectly, in any transaction in commodity futures or any transaction of the character of or which is commonly known to the trade as an "option", "privilege", "indemnity", "bid", "offer", "put", "call", "advance guaranty", or "decline guaranty", or any transaction for the delivery of any commodity under a standardized contract commonly known to the trade as a margin account, margin contract, leverage account, or leverage contract, or under any contract, account, arrangement, scheme, or device that the Commission determines serves the same function or functions as such a standardized contract, or is marketed or managed in substantially the same manner as such a standardized contract, or for any such person to participate, directly or indirectly, in any investment transaction in an actual commodity if nonpublic information is used in the investment transaction, if the investment transaction is prohibited by rule or regulation of the Commission, or if the investment transaction is effected by means of any instrument regulated by the Commission. The foregoing prohibitions shall not apply to any transaction or class of transactions that the Commission, by rule or regulation, has determined would not be contrary to the public interest or otherwise inconsistent with the purposes of this subsection.
(d) Use of information by Commissioners and Commission employees prohibited
It shall be a felony punishable by a fine of not more than $500,000 or imprisonment for not more than five years, or both, together with the costs of prosecution—(1) for any Commissioner of the Commission or any employee or agent thereof who, by virtue of his employment or position, acquires information which may affect or tend to affect the price of any commodity futures or commodity and which information has not been made public to impart such information with intent to assist another person, directly or indirectly, to participate in any transaction in commodity futures, any transaction in an actual commodity, or in any transaction of the character of or which is commonly known to the trade as an "option", "privilege", "indemnity", "bid", "offer", "put", "call", "advance guaranty", or "decline guaranty", or in any transaction for the delivery of any commodity under a standardized contract commonly known to the trade as a margin account, margin contract, leverage account, or leverage contract, or under any contract, account, arrangement, scheme, or device that the Commission determines serves the same function or functions as such a standardized contract, or is marketed or managed in substantially the same manner as such a standardized contract; and (2) for any person to acquire such information from any Commissioner of the Commission or any employee or agent thereof and to use such information in any transaction in commodity futures, any transaction in an actual commodity, or in any transaction of the character of or which is commonly known to the trade as an "option", "privilege", "indemnity", "bid", "offer", "put", "call", "advance guaranty", or "decline guaranty", or in any transaction for the delivery of any commodity under a standardized contract commonly known to the trade as a margin account, margin contract, leverage account, or leverage contract, or under any contract, account, arrangement, scheme, or device that the Commission determines serves the same function or functions as such a standardized contract, or is marketed or managed in substantially the same manner as such a standardized contract.
(e) Insider trading prohibited
It shall be a felony for any person—
(1) who is an employee, member of the governing board, or member of any committee of a board of trade, registered entity, swap data repository, or registered futures association, in violation of a regulation issued by the Commission, willfully and knowingly to trade for such person's own account, or for or on behalf of any other account, in contracts for future delivery or options thereon, or swaps, on the basis of, or willfully and knowingly to disclose for any purpose inconsistent with the performance of such person's official duties as an employee or member, any material nonpublic information obtained through special access related to the performance of such duties; or
(2) willfully and knowingly to trade for such person's own account, or for or on behalf of any other account, in contracts for future delivery or options thereon on the basis of any material nonpublic information that such person knows was obtained in violation of paragraph (1) from an employee, member of the governing board, or member of any committee of a board of trade, registered entity, or registered futures association.
Such felony shall be punishable by a fine of not more than $500,000, plus the amount of any profits realized from such trading or disclosure made in violation of this subsection, or imprisonment for not more than five years, or both, together with the costs of prosecution.
(Sept. 21, 1922, ch. 369, §9, 42 Stat. 1003; June 15, 1936, ch. 545, §§2, 11, 49 Stat. 1491, 1501; Pub. L. 90–258, §25, Feb. 19, 1968, 82 Stat. 33; Pub. L. 93–463, title II, §212(d), title IV, §§401, 409, Oct. 23, 1974, 88 Stat. 1404, 1412, 1414; Pub. L. 95–405, §19, Sept. 30, 1978, 92 Stat. 875; Pub. L. 97–444, title II, §227, Jan. 11, 1983, 96 Stat. 2316; Pub. L. 99–641, title I, §§105, 110(3), (4), Nov. 10, 1986, 100 Stat. 3558, 3561; Pub. L. 102–546, title II, §§212(a), 214(a), Oct. 28, 1992, 106 Stat. 3608, 3610; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(22)], Dec. 21, 2000, 114 Stat. 2763, 2763A-410; Pub. L. 110–234, title XIII, §§13103(d), 13105(h), May 22, 2008, 122 Stat. 1434, 1435; Pub. L. 110–246, §4(a), title XIII, §§13103(d), 13105(h), June 18, 2008, 122 Stat. 1664, 2196, 2197; Pub. L. 111–203, title VII, §741(b)(6), (7), July 21, 2010, 124 Stat. 1731.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2010—Subsec. (a)(2). Pub. L. 111–203, §741(b)(6)(A)(i), inserted "or of any swap," before "or to corner".
Subsec. (a)(4). Pub. L. 111–203, §741(b)(6)(A)(ii), inserted "swap data repository," before "or futures association".
Subsec. (a)(6). Pub. L. 111–203, §741(b)(7), added par. (6).
Subsec. (e)(1). Pub. L. 111–203, §741(b)(6)(B), inserted "swap data repository," before "or registered futures association" and ", or swaps," before "on the basis".
2008—Subsec. (a). Pub. L. 110–246, §13103(d), in introductory provisions, struck out "(or $500,000 in the case of a person who is an individual)" after "$1,000,000" and substituted "10 years" for "five years".
Subsecs. (e), (f). Pub. L. 110–246, §13105(h), redesignated subsec. (f) as (e) and, in par. (1), substituted "; or" for period at end.
2000—Subsecs. (a)(2) to (4), (f)(1), (2). Pub. L. 106–554 substituted "registered entity" for "contract market".
1992—Subsec. (a). Pub. L. 102–546, §212(a)(1)(A), (C), added subsec. (a) and struck out former subsec. (a) which related to penalty for embezzlement and larcenous actions.
Subsec. (b). Pub. L. 102–546, §212(a)(1)(A), (C), added subsec. (b) and struck out former subsec. (b) which related to penalty for price manipulation, cornering, and fraudulent information.
Subsec. (c). Pub. L. 102–546, §212(a)(1)(A), (B), (2), redesignated subsec. (d) as (c), substituted "$500,000" for "$100,000", and struck out former subsec. (c) which related to penalty for misdemeanors.
Subsecs. (d) to (f). Pub. L. 102–546, §§212(a)(1)(B), (3), 214(a), redesignated subsec. (e) as (d), substituted "$500,000" for "$100,000", and added subsec. (f).
1986—Subsec. (c). Pub. L. 99–641, §110(3), substituted "6k," for "6k."
Subsec. (d). Pub. L. 99–641, §110(4), substituted "advance guaranty" for "advance guarantee".
Pub. L. 99–641, §105, inserted "if nonpublic information is used in the investment transaction, if the investment transaction is prohibited by rule or regulation of the Commission, or if the investment transaction is effected by means of any instrument regulated by the Commission" after "actual commodity", and substituted provisions which related to foregoing prohibitions not being applicable to transactions determined by Commission not contrary to public interest or inconsistent with this subsection for provisions which read as follows: "Such prohibition against any investment transaction in an actual commodity shall not apply to (1) a transaction in which such person buys an agricultural commodity or livestock for use in such person's own farming or ranching operations or sells an agricultural commodity which such person has produced in connection with such person's own farming or ranching operations nor to any transaction in which such person sells livestock owned by such person for at least three months, (2) a transaction entered into by the trustee of a trust established by such person over which such person exercises no control if such transaction is entered into solely to hedge against adverse price changes in connection with such farming or ranching operations or is a transaction for the lease of oil or gas or other mineral rights or interests owned by such person, or (3) a transaction in which such person buys or sells, directly or indirectly (except by means of an instrument regulated by the Commission), a United States Government security, a certificate of deposit, or a similar financial instrument if no nonpublic information is used by such person in such transaction. With respect to such excepted transactions, the Commission shall require any Commissioner of the Commission or any employee or agent thereof who participates in any such transaction to notify the Commission thereof in accordance with such regulations as the Commission shall prescribe and the Commission shall make such information available to the public."
1983—Subsec. (a). Pub. L. 97–444, §227(1), expanded applicability to any person registered or required to be registered under this chapter and inserted provision suspending persons convicted under this subsec. from registration and denying reregistration for five years or longer as determined by the Commission, unless such suspension or denial is not required to protect the public interest.
Subsec. (b). Pub. L. 97–444, §227(2), inserted "A person convicted of a felony under this subsection shall be suspended from any registration under this chapter, denied registration or reregistration for five years or such longer period as the Commission shall determine, and barred from using or participating in any manner in any market regulated by the Commission for five years or such longer period as the Commission shall determine on such terms and conditions as the Commission may prescribe, unless the Commission determines that the imposition of such suspension, denial of registration or reregistration, or market bar is not required to protect the public interest. The Commission may upon petition later review such disqualification and market bar and for good cause shown reduce the period thereof."
Subsec. (c). Pub. L. 97–444, §227(3), inserted "A person convicted under this subsection of knowingly violating the provisions of section 6a of this title shall be suspended from any registration under this chapter, denied registration or reregistration for a period of two years or such longer period as the Commission shall determine, and barred from using or participating in any manner in any market regulated by the Commission for two years or such longer period as the Commission shall determine on such terms and conditions as the Commission may prescribe, unless the Commission determines that the imposition of such suspension, denial of registration or reregistration, or market bar is not required to protect the public interest. The Commission may upon petition later review such disqualification and market bar and for good cause shown reduce the period thereof."
Subsec. (d). Pub. L. 97–444, §227(4), in amending subsec. (d) generally, added to range of felonious conduct, participation in any transaction for the delivery of any commodity under a standardized contract commonly known to the trade as a margin account, margin contract, leverage account, or leverage contract, or under any contract, account, arrangement, scheme, or device that the Commission determines serves the same function or functions as such a standardized contract, or is marketed or managed in substantially the same manner as such a standardized contract, and added to nonapplicability of prohibition against any investment transaction in an actual commodity, a transaction entered into by the trustee of a trust established by such person over which such person exercises no control if such transaction is entered into solely to hedge against adverse price changes in connection with such farming or ranching operations or is a transaction for the lease of oil or gas or other mineral rights or interests owned by such person, or a transaction in which such person buys or sells, directly or indirectly (except by means of an instrument regulated by the Commission), a United States Government security, a certificate of deposit, or a similar financial instrument if no nonpublic information is used by such person in such transaction.
Subsec. (e). Pub. L. 97–444, §227(5), inserted after words " 'decline guaranty' " each place they appear the following: ", or in any transaction for the delivery of any commodity under a standardized contract commonly known to the trade as a margin account, margin contract, leverage account, or leverage contract, or under any contract, account, arrangement, scheme, or device that the Commission determines serves the same function or functions as such a standardized contract, or is marketed or managed in substantially the same manner as such a standardized contract".
1978—Subsec. (a). Pub. L. 95–405, §19(1), substituted "$500,000" for "$100,000" and inserted provision relating to a fine of not more than $100,000 plus costs of prosecution for a violation by a person who is an individual.
Subsec. (b). Pub. L. 95–405, §19(2), substituted "$500,000" for "$100,000" and inserted provisions making felonies the violation of sections 6, 6b, 6c(b) to (e), 6h, 6o(1) and 23 of this title, knowingly making any false or misleading statement of material fact, or omitting such fact in any application or report, and setting the fine for such felonies at not more than $100,000 for a person who is an individual.
Subsec. (c). Pub. L. 95–405, §19(3), inserted references to subsecs. (d) and (e) of this section and substituted "sections 6a, 6c(a), 6d, 6e, 6i, 6k, 6m, 6o(2), or 12b of this title" for "sections 6 to 6e, 6h, 6i, 6k, 6m, 6o or 12b of this title".
Subsecs. (d), (e). Pub. L. 95–405, §19(4), (5), substituted "$100,000" for "$10,000".
1974—Subsecs. (a), (b). Pub. L. 93–463, §212(d)(1), (2), substituted "$100,000" for "$10,000".
Subsec. (c). Pub. L. 93–463, §§212(d)(3), 409, substituted "$100,000" for "$10,000" and inserted reference to sections 6k, 6m, and 6o of this title.
Subsecs. (d), (e). Pub. L. 93–463, §401, added subsecs. (d) and (e).
1968—Subsec. (a). Pub. L. 90–258 added subsec. (a).
Subsec. (b). Pub. L. 90–258 incorporated existing offenses in provisions designated as subsec. (b), changed classification thereof from misdemeanors to felonies, and increased term of imprisonment from not more than one year to not more than five years.
Subsec. (c). Pub. L. 90–258 incorporated existing offenses in provisions designated as subsec. (c), and included penalty for violation of section 12b of this title.
1936—Act June 15, 1936, amended section generally and provided that price manipulations of commodities in interstate commerce was a violation.
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–405 effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as a note under section 2 of this title.
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–258 effective 120 days after Feb. 19, 1968, see section 28 of Pub. L. 90–258, set out as a note under section 2 of this title.
Effective Date of 1936 Amendment
Amendment by act June 15, 1936, effective 90 days after June 15, 1936, see section 13 of that act, set out as a note under section 1 of this title.
Regulations
Pub. L. 102–546, title II, §214(b), Oct. 28, 1992, 106 Stat. 3611, provided that: "The Commodity Futures Trading Commission shall issue regulations to implement the amendment made by subsection (a) [amending this section] not later than three hundred and sixty days after the date of enactment of this Act [Oct. 28, 1992]."
Penalties Study and Guidelines
Pub. L. 102–546, title II, §225, Oct. 28, 1992, 106 Stat. 3618, provided that the Commodity Futures Trading Commission should study the penalties the Commission imposes against persons found to have violated the Commodity Exchange Act (7 U.S.C. 1 et seq.) and the penalties imposed by contract markets and registered futures associations against persons found to have violated their respective rules established under such Act, and, within two years after Oct. 28, 1992, submit to Congress a report, including proposed penalty guidelines, that describes the results of the study.
1 So in original. Probably should be "section".
§13–1. Violations, prohibition against dealings in motion picture box office receipts or onion futures; punishment
(a) No contract for the sale of motion picture box office receipts (or any index, measure, value, or data related to such receipts) or onions for future delivery shall be made on or subject to the rules of any board of trade in the United States. The terms used in this section shall have the same meaning as when used in the Commodity Exchange Act [7 U.S.C. 1 et seq.].
(b) Any person who shall violate the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction thereof be fined not more than $5,000.
(Pub. L. 85–839, §1, Aug. 28, 1958, 72 Stat. 1013; Pub. L. 111–203, title VII, §721(e)(10), July 21, 2010, 124 Stat. 1672.)
Editorial Notes
References in Text
The Commodity Exchange Act, referred to in subsec. (a), is act Sept. 21, 1922, ch. 369, 42 Stat. 998, which is classified generally to this chapter. For complete classification of this Act to the Code, see section 1 of this title and Tables.
Codification
Section was not enacted as part of the Commodity Exchange Act which comprises this chapter.
Amendments
2010—Subsec. (a). Pub. L. 111–203 inserted "motion picture box office receipts (or any index, measure, value, or data related to such receipts) or" after "sale of".
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date
Pub. L. 85–839, §2, Aug. 28, 1958, 72 Stat. 1013, provided that: "This Act [enacting this section] shall take effect thirty days after its enactment [Aug. 28, 1958]."
§13a. Nonenforcement of rules of government or other violations; cease and desist orders; fines and penalties; imprisonment; misdemeanor; separate offenses
If any registered entity is not enforcing or has not enforced its rules of government made a condition of its designation or registration as set forth in sections 7 through 7a–2 of this title, or if any registered entity, or any director, officer, agent, or employee of any registered entity otherwise is violating or has violated any of the provisions of this chapter or any of the rules, regulations, or orders of the Commission thereunder, the Commission may, upon notice and hearing on the record and subject to appeal as in other cases provided for in section 8(b) of this title, make and enter an order directing that such registered entity, director, officer, agent, or employee shall cease and desist from such violation, and assess a civil penalty of not more than $500,000 for each such violation, or, in any case of manipulation or attempted manipulation in violation of section 9, 15, 13b, or 13(a)(2) of this title, a civil penalty of not more than $1,000,000 for each such violation. If such registered entity, director, officer, agent, or employee, after the entry of such a cease and desist order and the lapse of the period allowed for appeal of such order or after the affirmance of such order, shall fail or refuse to obey or comply with such order, such registered entity, director, officer, agent, or employee shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500,000 or imprisoned for not less than six months nor more than one year, or both, except that if the failure or refusal to obey or comply with the order involved any offense under section 13(a)(2) of this title, the registered entity, director, officer, agent, or employee shall be guilty of a felony and, on conviction, shall be subject to penalties under section 13(a)(2) of this title. Each day during which such failure or refusal to obey such cease and desist order continues shall be deemed a separate offense. If the offending registered entity or other person upon whom such penalty is imposed, after the lapse of the period allowed for appeal or after the affirmance of such penalty, shall fail to pay such penalty, the Commission shall refer the matter to the Attorney General who shall recover such penalty by action in the appropriate United States district court. In determining the amount of the money penalty assessed under this section, the Commission shall consider the gravity of the offense, and in the case of a registered entity shall further consider whether the amount of the penalty will materially impair the ability of the registered entity to carry on its operations and duties.
(Sept. 21, 1922, ch. 369, §6b, as added June 15, 1936, ch. 545, §9, 49 Stat. 1500; amended Pub. L. 90–258, §18, Feb. 19, 1968, 82 Stat. 31; Pub. L. 93–463, title II, §212(b), Oct. 23, 1974, 88 Stat. 1403; Pub. L. 95–405, §14, Sept. 30, 1978, 92 Stat. 872; Pub. L. 102–546, title II, §§209(b)(5), 212(c), Oct. 28, 1992, 106 Stat. 3607, 3609; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(14)], Dec. 21, 2000, 114 Stat. 2763, 2763A-409; Pub. L. 110–234, title XIII, §13103(b), May 22, 2008, 122 Stat. 1433; Pub. L. 110–246, §4(a), title XIII, §13103(b), June 18, 2008, 122 Stat. 1664, 2195.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2008—Pub. L. 110–246, §13103(b), in first sentence, inserted before period at end ", or, in any case of manipulation or attempted manipulation in violation of section 9, 15, 13b, or 13(a)(2) of this title, a civil penalty of not more than $1,000,000 for each such violation" and, in second sentence, inserted before period at end ", except that if the failure or refusal to obey or comply with the order involved any offense under section 13(a)(2) of this title, the registered entity, director, officer, agent, or employee shall be guilty of a felony and, on conviction, shall be subject to penalties under section 13(a)(2) of this title".
2000—Pub. L. 106–554 substituted "registered entity" for "contract market" wherever appearing, "designation or registration as set forth in sections 7 through 7a–2 of this title" for "designation as set forth in section 7 of this title" in first sentence, and "the ability of the registered entity" for "the contract market's ability" in last sentence.
1992—Pub. L. 102–546 substituted "section 8(b) of this title" for "paragraph (a) of section 8 of this title", substituted "$500,000" for "$100,000" in two places, and in last sentence struck out "the appropriateness of such penalty to the net worth of the offending person and" after "Commission shall consider".
1978—Pub. L. 95–405 inserted "on the record" after "notice and hearing".
1974—Pub. L. 93–463 inserted provision for assessment of a civil penalty of not more than $100,000 for each violation, substituted "not more than $100,000" for "not less than $500 nor more than $10,000" as permissible range of fines imposed, inserted provisions for enforcement of a penalty, and substituted "orders of the Commission" for "orders of the Secretary of Agriculture or the commission".
1968—Pub. L. 90–258 amended section to clarify application only to boards of trade designated as contract markets, to include as grounds for cease and desist orders failure to enforce the market's rules of government made a condition of its designation and violation of rules or regulations of the commission or orders of the Secretary, and to authorize such orders in conjunction with a suspension or revocation of designation as a contract market rather than in lieu of suspension or revocation.
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–405 effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as a note under section 2 of this title.
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–258 effective 120 days after Feb. 19, 1968, see section 28 of Pub. L. 90–258, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 13 of act June 15, 1936, set out as an Effective Date of 1936 Amendment note under section 1 of this title.
§13a–1. Enjoining or restraining violations
(a) Action to enjoin or restrain violations
Whenever it shall appear to the Commission that any registered entity or other person has engaged, is engaging, or is about to engage in any act or practice constituting a violation of any provision of this chapter or any rule, regulation, or order thereunder, or is restraining trading in any commodity for future delivery or any swap, the Commission may bring an action in the proper district court of the United States or the proper United States court of any territory or other place subject to the jurisdiction of the United States, to enjoin such act or practice, or to enforce compliance with this chapter, or any rule, regulation or order thereunder, and said courts shall have jurisdiction to entertain such actions: Provided, That no restraining order (other than a restraining order which prohibits any person from destroying, altering or disposing of, or refusing to permit authorized representatives of the Commission to inspect, when and as requested, any books and records or other documents or which prohibits any person from withdrawing, transferring, removing, dissipating, or disposing of any funds, assets, or other property, and other than an order appointing a temporary receiver to administer such restraining order and to perform such other duties as the court may consider appropriate) or injunction for violation of the provisions of this chapter shall be issued ex parte by said court.
(b) Injunction or restraining order
Upon a proper showing, a permanent or temporary injunction or restraining order shall be granted without bond.
(c) Writs or other orders
Upon application of the Commission, the district courts of the United States and the United States courts of any territory or other place subject to the jurisdiction of the United States shall also have jurisdiction to issue writs of mandamus, or orders affording like relief, commanding any person to comply with the provisions of this chapter or any rule, regulation, or order of the Commission thereunder, including the requirement that such person take such action as is necessary to remove the danger of violation of this chapter or any such rule, regulation, or order: Provided, That no such writ of mandamus, or order affording like relief, shall be issued ex parte.
(d) Civil penalties
(1)
(A) a civil penalty in the amount of not more than the greater of $100,000 or triple the monetary gain to the person for each violation; or
(B) in any case of manipulation or attempted manipulation in violation of section 9, 15, 13b, or 13(a)(2) of this title, a civil penalty in the amount of not more than the greater of $1,000,000 or triple the monetary gain to the person for each violation.
(2) If a person on whom such a penalty is imposed fails to pay the penalty within the time prescribed in the court's order, the Commission may refer the matter to the Attorney General who shall recover the penalty by action in the appropriate United States district court.
(3)
(A) restitution to persons who have sustained losses proximately caused by such violation (in the amount of such losses); and
(B) disgorgement of gains received in connection with such violation.
(e) Venue and process
Any action under this section may be brought in the district wherein the defendant is found or is an inhabitant or transacts business or in the district where the act or practice occurred, is occurring, or is about to occur, and process in such cases may be served in any district in which the defendant is an inhabitant or wherever the defendant may be found.
(f) Action by Attorney General
In lieu of bringing actions itself pursuant to this section, the Commission may request the Attorney General to bring the action.
(g) Notice to Attorney General of action brought by Commission
Where the Commission elects to bring the action, it shall inform the Attorney General of such suit and advise him of subsequent developments.
(h) Notice of investigations and enforcement actions
The Commission shall provide the Securities and Exchange Commission with notice of the commencement of any proceeding and a copy of any order entered by the Commission against any futures commission merchant or introducing broker registered pursuant to section 6f(a)(2) of this title, any floor broker or floor trader exempt from registration pursuant to section 6f(a)(3) of this title, any associated person exempt from registration pursuant to section 6k(6) of this title, or any board of trade designated as a contract market pursuant to section 7b–1 of this title.
(Sept. 21, 1922, ch. 369, §6c, as added Pub. L. 93–463, title II, §211, Oct. 23, 1974, 88 Stat. 1402; amended Pub. L. 97–444, title II, §220, Jan. 11, 1983, 96 Stat. 2308; Pub. L. 99–641, title I, §104, Nov. 10, 1986, 100 Stat. 3557; Pub. L. 102–546, title II, §221, Oct. 28, 1992, 106 Stat. 3614; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(15), title II, §253(c)], Dec. 21, 2000, 114 Stat. 2763, 2763A-409, 2763A-449; Pub. L. 110–234, title XIII, §13103(c), May 22, 2008, 122 Stat. 1434; Pub. L. 110–246, §4(a), title XIII, §13103(c), June 18, 2008, 122 Stat. 1664, 2196; Pub. L. 111–203, title VII, §§741(b)(5), 744, July 21, 2010, 124 Stat. 1731, 1735.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2010—Subsec. (a). Pub. L. 111–203, §741(b)(5), inserted "or any swap" after "commodity for future delivery".
Subsec. (d)(3). Pub. L. 111–203, §744, added par. (3).
2008—Subsec. (d). Pub. L. 110–246, §13103(c), inserted subsec. heading, added par. (1), and struck out former par. (1) which read as follows: "In any action brought under this section, the Commission may seek and the court shall have jurisdiction to impose, on a proper showing, on any person found in the action to have committed any violation a civil penalty in the amount of not more than the higher of $100,000 or triple the monetary gain to the person for each violation."
2000—Subsec. (a). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(15)], substituted "registered entity" for "contract market".
Subsec. (h). Pub. L. 106–554, §1(a)(5) [title II, §253(c)], added subsec. (h).
1992—Pub. L. 102–546 designated first, second, and third sentences as subsecs. (a) to (c), respectively, added subsec. (d), and designated fourth, fifth, and sixth sentences as subsecs. (e) to (g), respectively.
1986—Pub. L. 99–641 inserted ", and other than an order appointing a temporary receiver to administer such restraining order and to perform such other duties as the court may consider appropriate".
1983—Pub. L. 97–444 inserted "(other than a restraining order which prohibits any person from destroying, altering or disposing of, or refusing to permit authorized representatives of the Commission to inspect, when and as requested, any books and records or other documents or which prohibits any person from withdrawing, transferring, removing, dissipating, or disposing of any funds, assets, or other property)" after "Provided, That no restraining order".
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 418 of Pub. L. 93–463, set out as an Effective Date of 1974 Amendment note under section 2 of this title.
§13a–2. Jurisdiction of States
(1) Whenever it shall appear to the attorney general of any State, the administrator of the securities laws of any State, or such other official as a State may designate, that the interests of the residents of that State have been, are being, or may be threatened or adversely affected because any person (other than a contract market, derivatives transaction execution facility, clearinghouse, floor broker, or floor trader) has engaged in, is engaging or is about to engage in, any act or practice constituting a violation of any provision of this chapter or any rule, regulation, or order of the Commission thereunder, the State may bring a suit in equity or an action at law on behalf of its residents to enjoin such act or practice, to enforce compliance with this chapter, or any rule, regulation, or order of the Commission thereunder, to obtain damages on behalf of their residents, or to obtain such further and other relief as the court may deem appropriate.
(2) The district courts of the United States, the United States courts of any territory, and the District Court of the United States for the District of Columbia, shall have jurisdiction of all suits in equity and actions at law brought under this section to enforce any liability or duty created by this chapter or any rule, regulation, or order of the Commission thereunder, or to obtain damages or other relief with respect thereto. Upon proper application, such courts shall also have jurisdiction to issue writs of mandamus, or orders affording like relief, commanding the defendant to comply with the provisions of this chapter or any rule, regulation, or order of the Commission thereunder, including the requirement that the defendant take such action as is necessary to remove the danger of violation of this chapter or of any such rule, regulation, or order. Upon a proper showing, a permanent or temporary injunction or restraining order shall be granted without bond.
(3) Immediately upon instituting any such suit or action, the State shall serve written notice thereof upon the Commission and provide the Commission with a copy of its complaint, and the Commission shall have the right to (A) intervene in the suit or action and, upon doing so, shall be heard on all matters arising therein, and (B) file petitions for appeal.
(4) Any suit or action brought under this section in a district court of the United States may be brought in the district wherein the defendant is found or is an inhabitant or transacts business or wherein the act or practice occurred, is occurring, or is about to occur, and process in such cases may be served in any district in which the defendant is an inhabitant or wherever the defendant may be found.
(5) For purposes of bringing any suit or action under this section, nothing in this chapter shall prevent the attorney general, the administrator of the State securities laws, or other duly authorized State officials from exercising the powers conferred on them by the laws of such State to conduct investigations or to administer oaths or affirmations or to compel the attendance of witnesses or the production of documentary and other evidence.
(6) For purposes of this section, "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States.
(7) Nothing contained in this section shall prohibit an authorized State official from proceeding in State court on the basis of an alleged violation of any general civil or criminal antifraud statute of such State.
(8)(A) Nothing in this chapter shall prohibit an authorized State official from proceeding in a State court against any person registered under this chapter (other than a floor broker, floor trader, or registered futures association) for an alleged violation of any antifraud provision of this chapter or any antifraud rule, regulation, or order issued pursuant to the chapter.
(B) The State shall give the Commission prior written notice of its intent to proceed before instituting a proceeding in State court as described in this subsection and shall furnish the Commission with a copy of its complaint immediately upon instituting any such proceeding. The Commission shall have the right to (i) intervene in the proceeding and, upon doing so, shall be heard on all matters arising therein, and (ii) file a petition for appeal. The Commission or the defendant may remove such proceeding to the district court of the United States for the proper district by following the procedure for removal otherwise provided by law, except that the petition for removal shall be filed within sixty days after service of the summons and complaint upon the defendant. The Commission shall have the right to appear as amicus curiae in any such proceeding.
(Sept. 21, 1922, ch. 369, §6d, as added Pub. L. 95–405, §15, Sept. 30, 1978, 92 Stat. 872; amended Pub. L. 97–444, title II, §221, Jan. 11, 1983, 96 Stat. 2308; Pub. L. 102–546, title II, §207(b)(1), (2), Oct. 28, 1992, 106 Stat. 3604; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(16)], Dec. 21, 2000, 114 Stat. 2763, 2763A-409.)
Editorial Notes
Amendments
2000—Par. (1). Pub. L. 106–554 inserted "derivatives transaction execution facility," after "contract market,".
1992—Pars. (1), (8)(A). Pub. L. 102–546 inserted reference to floor trader.
1983—Par. (8). Pub. L. 97–444 added par. (8).
Statutory Notes and Related Subsidiaries
Effective Date of 1992 Amendment
Amendment by Pub. L. 102–546 effective 180 days after Oct. 28, 1992, with Commodity Futures Trading Commission to issue any regulations necessary to implement such amendment no later than 180 days after Oct. 28, 1992, see section 207(c) of Pub. L. 102–546, set out as a note under section 6e of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date
Section effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as an Effective Date of 1978 Amendment note under section 2 of this title.
§13b. Manipulations or other violations; cease and desist orders against persons other than registered entities; punishment
If any person (other than a registered entity), is violating or has violated section 9 of this title or any other provisions of this chapter or of the rules, regulations, or orders of the Commission thereunder, the Commission may, upon notice and hearing, and subject to appeal as in other cases provided for in section 9 of this title, make and enter an order directing that such person shall cease and desist therefrom and, if such person thereafter and after the lapse of the period allowed for appeal of such order or after the affirmance of such order, shall knowingly fail or refuse to obey or comply with such order, such person, upon conviction thereof, shall be fined not more than the higher of $140,000 or triple the monetary gain to such person, or imprisoned for not more than 1 year, or both, except that if such knowing failure or refusal to obey or comply with such order involves any offense within subsection (a) or (b) of section 13 of this title, such person, upon conviction thereof, shall be subject to the penalties of said subsection (a) or (b): Provided, That any such cease and desist order under this section against any respondent in any case of manipulation shall be issued only in conjunction with an order issued against such respondent under section 9 of this title.
(Sept. 21, 1922, ch. 369, §6(d), formerly §6(c), as added Pub. L. 90–258, §17, Feb. 19, 1968, 82 Stat. 31; amended Pub. L. 93–463, title I, §103(a), (b), title II, §212(c), Oct. 23, 1974, 88 Stat. 1392, 1404; renumbered §6(d) and amended Pub. L. 102–546, title II, §§209(a)(1), (4), 212(b), Oct. 28, 1992, 106 Stat. 3606, 3609; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(12)(D)], Dec. 21, 2000, 114 Stat. 2763, 2763A-409; Pub. L. 111–203, title VII, §§741(b)(4), 753(b), July 21, 2010, 124 Stat. 1731, 1753.)
Editorial Notes
Codification
Section is comprised of subsec. (d) of section 6 of act Sept. 21, 1922. Subsecs. (a) and (b) of section 6 are classified to section 8 of this title. Subsec. (c) of section 6 is classified to section 9 of this title. Subsecs. (e), (f), and (g) of section 6 are classified to sections 9a, 9b, and 9c of this title, respectively.
Amendments
2010—Pub. L. 111–203, §753(b), amended section generally. Prior to amendment, text read as follows: "If any person (other than a registered entity) is manipulating or attempting to manipulate or has manipulated or attempted to manipulate the market price of any commodity, in interstate commerce, or for future delivery on or subject to the rules of any registered entity, or of any swap, or otherwise is violating or has violated any of the provisions of this chapter or of the rules, regulations, or orders of the Commission or the commission thereunder, the Commission may, upon notice and hearing, and subject to appeal as in other cases provided for in sections 9 and 15 of this title, make and enter an order directing that such person shall cease and desist therefrom and, if such person thereafter and after the lapse of the period allowed for appeal of such order or after the affirmance of such order, shall fail or refuse to obey or comply with such order, such person shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than the higher of $100,000 or triple the monetary gain to such person, or imprisoned for not less than six months nor more than one year, or both, except that if such failure or refusal to obey or comply with such order involves any offense within paragraph (a) or (b) of section 13 of this title, such person shall be guilty of a felony and, upon conviction thereof, shall be subject to the penalties of said paragraph (a) or (b): Provided, That any such cease and desist order against any respondent in any case of manipulation of, or attempt to manipulate, the price of any commodity shall be issued only in conjunction with an order issued against such respondent under sections 9 and 15 of this title. Each day during which such failure or refusal to obey or comply with such order continues shall be deemed a separate offense."
Pub. L. 111–203, §741(b)(4), inserted "or of any swap," before "or otherwise is violating".
2000—Pub. L. 106–554 substituted "registered entity" for "contract market" in two places.
1992—Pub. L. 102–546 made technical amendment to references to sections 9 and 15 of this title to reflect change in reference to corresponding section of original act and substituted "the higher of $100,000 or triple the monetary gain to such person" for "$100,000".
1974—Pub. L. 93–463, §§103(a), 212(c), substituted "Commission" for "Secretary" before "may" and substituted "not more than $100,000" for "not less than $500 nor more than $10,000".
Pub. L. 93–463, §103(a), provided for substitution of "Commission" for "Secretary of Agriculture" except where such words would be stricken by section 103(b), which directed striking the words "the Secretary of Agriculture or" where they appeared in the phrase "the Secretary of Agriculture or the Commission". Because the word "commission" was not capitalized in the text of this section, section 103(b) did not apply to this section and therefore section 103(a) was executed, resulting in the substitution of "the Commission or the commission" for "the Secretary of Agriculture or the commission".
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by section 741(b)(4) of Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Amendment by section 753(b) of Pub. L. 111–203 effective on the date on which the final rule promulgated by the Commodity Futures Trading Commission pursuant to Pub. L. 111–203 takes effect [see 76 F.R. 41398, effective Aug. 15, 2011], see section 753(d) of Pub. L. 111–203, set out as a note under section 9 of this title.
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date
Section effective 120 days after Feb. 19, 1968, see section 28 of Pub. L. 90–258, set out as an Effective Date of 1968 Amendment note under section 2 of this title.
§13c. Responsibility as principal; minor violations
(a) Any person who commits, or who willfully aids, abets, counsels, commands, induces, or procures the commission of, a violation of any of the provisions of this chapter, or any of the rules, regulations, or orders issued pursuant to this chapter, or who acts in combination or concert with any other person in any such violation, or who willfully causes an act to be done or omitted which if directly performed or omitted by him or another would be a violation of the provisions of this chapter or any of such rules, regulations, or orders may be held responsible for such violation as a principal.
(b) Any person who, directly or indirectly, controls any person who has violated any provision of this chapter or any of the rules, regulations, or orders issued pursuant to this chapter may be held liable for such violation in any action brought by the Commission to the same extent as such controlled person. In such action, the Commission has the burden of proving that the controlling person did not act in good faith or knowingly induced, directly or indirectly, the act or acts constituting the violation.
(c) Nothing in this chapter shall be construed as requiring the Commission or the Commission 1 to report minor violations of this chapter for prosecution, whenever it appears that the public interest does not require such action.
(Sept. 21, 1922, ch. 369, §13, as added Pub. L. 90–258, §26, Feb. 19, 1968, 82 Stat. 34; amended Pub. L. 93–463, title I, §103(a), (b), Oct. 23, 1974, 88 Stat. 1392; Pub. L. 97–444, title II, §230, Jan. 11, 1983, 96 Stat. 2319; Pub. L. 102–546, title IV, §402(1)(D), (9)(C), Oct. 28, 1992, 106 Stat. 3624, 3625.)
Editorial Notes
Amendments
1992—Subsec. (c). Pub. L. 102–546, §402(9)(C), which directed that "the Secretary of Agriculture or" be struck out, could not be executed because of amendment by Pub. L. 93–463, §103(a). See 1974 Amendment note below.
Pub. L. 102–546, §402(1)(D), substituted "Commission" for "commission" before "to report".
1983—Subsec. (a). Pub. L. 97–444, §230(1), struck out "in administrative proceedings under this chapter" after "may be held responsible".
Subsecs. (b), (c). Pub. L. 97–444, §230(2), (3), added subsec. (b) and redesignated former subsec. (b) as (c).
1974—Subsec. (b). Pub. L. 93–463, §103(a), provided for substitution of "Commission" for "Secretary of Agriculture" except where such words would be stricken by section 103(b), which directed striking the words "the Secretary of Agriculture or" where they appeared in the phrase "the Secretary of Agriculture or the Commission". Because the word "commission" was not capitalized in the text of this section, section 103(b) did not apply to this section and therefore section 103(a) was executed, resulting in the substitution of "the Commission or the commission" for "the Secretary of Agriculture or the commission".
Statutory Notes and Related Subsidiaries
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 of this title.
Effective Date
Section effective 120 days after Feb. 19, 1968, see section 28 of Pub. L. 90–258, set out as an Effective Date of 1968 Amendment note under section 2 of this title.
1 So in original. The words "or the Commission" probably should not appear.
§14. Repealed. Pub. L. 99–641, title I, §110(5), Nov. 10, 1986, 100 Stat. 3561
Section, act Sept. 21, 1922, ch. 369, §11, 42 Stat. 1003, provided that violations of this chapter occurring before Nov. 1, 1922, should not be punishable.
§15. Omitted
Editorial Notes
Codification
Section, act Sept. 21, 1922, ch. 369, §6(c) (part), formerly §6(b), 42 Stat. 1002, as amended and renumbered, which related to enforcement powers of Commission, was omitted in the general amendment of section 6(c) of act Sept. 21, 1922, by Pub. L. 111–203, title VII, §753(a), July 21, 2010, 124 Stat. 1750. Section 6(c) is now classified to section 9 of this title.
§15a. Repealed. Pub. L. 95–405, §24, Sept. 30, 1978, 92 Stat. 877
Section, Pub. L. 93–463, title II, §217, Oct. 23, 1974, 88 Stat. 1405, related to leverage contracts for gold and silver. See section 23(b) of this title.
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as an Effective Date of 1978 Amendment note under section 2 of this title.
§15b. Cotton futures contracts
(a) Short title
This section may be cited as the "United States Cotton Futures Act".
(b) Omitted
(c) Definitions
For purposes of this section—
(1) Cotton futures contract
The term "cotton futures contract" means any contract of sale of cotton for future delivery made at, on, or in any exchange, board of trade, or similar institution or place of business which has been designated a "contract market" by the Commodity Futures Trading Commission pursuant to the Commodity Exchange Act [7 U.S.C. 1 et seq.] and the term "contract of sale" as so used shall be held to include sales, agreements of sale, and agreements to sell, except that—
(A) any cotton futures contract that, by its terms, is settled in cash is excluded from the coverage of this paragraph and section; and
(B) any cotton futures contract that permits tender of cotton grown outside of the United States is excluded from the coverage of this paragraph and section to the extent that the cotton grown outside of the United States is tendered for delivery under the cotton futures contract.
(2) Future delivery
The term "future delivery" shall not include any cash sale of cotton for deferred shipment or delivery.
(3) Person
The term "person" includes an individual, trust, estate, partnership, association, company, or corporation.
(4) Secretary
The term "Secretary" means the Secretary of Agriculture of the United States.
(5) Standards
The term "standards" means the official cotton standards of the United States established by the Secretary pursuant to the United States Cotton Standards Act, as amended [7 U.S.C. 51 et seq.].
(d) Bona fide spot markets and commercial differences
(1) Definition
For purposes of this section, the only markets which shall be considered bona fide spot markets shall be those which the Secretary shall, from time to time, after investigation, determine and designate to be such, and of which he shall give public notice.
(2) Determination
In determining, pursuant to the provisions of this section, what markets are bona fide spot markets, the Secretary is directed to consider only markets in which spot cotton is sold in such volume and under such conditions as customarily to reflect accurately the value of middling cotton and the differences between the prices or values of middling cotton and of other grades of cotton for which standards shall have been established by the Secretary; except that if there are not sufficient places, in the markets of which are made bona fide sales of spot cotton of grades for which standards are established by the Secretary, to enable him to designate at least five spot markets in accordance with subsection (f)(3), he shall, from data as to spot sales collected by him, make rules and regulations for determining the actual commercial differences in the value of spot cotton of the grades established by him as reflected by bona fide sales of spot cotton, of the same or different grades, in the market selected and designated by him, from time to time, for that purpose, and in that event differences in value of cotton of various grades involved in contracts made pursuant to subsection (f)(1) and (2) shall be determined in compliance with such rules and regulations. It shall be the duty of any person engaged in the business of dealing in cotton, when requested by the Secretary or any agent acting under his instructions, to answer correctly to the best of his knowledge, under oath or otherwise, all questions touching his knowledge of the number of bales, the classification, the price or bona fide price offered, and other terms of purchase or sale, of any cotton involved in any transaction participated in by him, or to produce all books, letters, papers, or documents in his possession or under his control relating to such matter. A person complying with the preceding sentence shall not be liable for any loss or damage arising or resulting from such compliance.
(3) Withholding information
Any person engaged in the business of dealing in cotton who shall, within a reasonable time prescribed by the Secretary or any agent acting under his instructions, willfully fail or refuse to answer questions or to produce books, letters, papers, or documents, as required under paragraph (2) of this subsection, or who shall willfully give any answer that is false or misleading, shall, upon conviction thereof, be fined not more than $500.
(e) Form and validity of cotton futures contracts
Each cotton futures contract shall be a basis grade contract, or a tendered grade contract, or a specific grade contract as specified in subsections (f), (g), or (h) and shall be in writing plainly stating, or evidenced by written memorandum showing, the terms of such contract, including the quantity of the cotton involved and the names and addresses of the seller and buyer in such contract, and shall be signed by the party to be charged, or by his agent in his behalf. No cotton futures contract which does not conform to such requirements shall be enforceable by, or on behalf of, any party to such contract or his privies.
(f) Basis grade contracts
(1) Conditions
Each basis grade cotton futures contract shall comply with each of the following conditions:
(A) Conformity with regulations
Conform to the regulations made pursuant to this section.
(B) Specification of grade, price, and dates of sale and settlement
Specify the basis grade for the cotton involved in the contract, which shall be one of the grades for which standards are established by the Secretary, except grades prohibited from being delivered on a contract made under this subsection by subparagraph (E), the price per pound at which the cotton of such basis grade is contracted to be bought or sold, the date when the purchase or sale was made, and the month or months in which the contract is to be fulfilled or settled; except that middling shall be deemed the basis grade incorporated into the contract if no other basis grade be specified either in the contract or in the memorandum evidencing the same.
(C) Provision for delivery of standard grades only
Provide that the cotton dealt with therein or delivered thereunder shall be of or within the grades for which standards are established by the Secretary except grades prohibited from being delivered on a contract made under this subsection by subparagraph (E) and no other grade or grades.
(D) Provision for settlement on basis of actual commercial differences
Provide that in case cotton of grade other than the basis grade be tendered or delivered in settlement of such contract, the differences above or below the contract price which the receiver shall pay for such grades other than the basis grade shall be the actual commercial differences, determined as hereinafter provided.
(E) Prohibition of delivery of inferior cotton
Provide that cotton that, because of the presence of extraneous matter of any character, or irregularities or defects, is reduced in value below that of low middling, or cotton that is below the grade of low middling, or, if tinged, cotton that is below the grade of strict middling, or, if yellow stained, cotton that is below the grade of good middling, the grades mentioned being of the official cotton standards of the United States, or cotton that is less than seven-eighths of an inch in length of staple, or cotton of perished staple, or of immature staple, or cotton that is "gin cut" or reginned, or cotton that is "repacked" or "false packed" or "mixed packed" or "water packed", shall not be delivered on, under, or in settlement of such contract.
(F) Provisions for tender in full, notice of delivery date, and certificate of grade
Provide that all tenders of cotton under such contract shall be the full number of bales involved therein, except that such variations of the number of bales may be permitted as is necessary to bring the total weight of the cotton tendered within the provisions of the contract as to weight; that, on the fifth business day prior to delivery, the person making the tender shall give to the person receiving the same written notice of the date of delivery, and that, on or prior to the date so fixed for delivery, and in advance of final settlement of the contract, the person making the tender shall furnish to the person receiving the same a written notice or certificate stating the grade of each individual bale to be delivered and, by means of marks or numbers, identifying each bale with its grade.
(G) Provision for tender and settlement in accordance with Government classification
Provide that all tenders of cotton and settlements therefor under such contract shall be in accordance with the classification thereof made under the regulations of the Secretary by such officer or officers of the Government as shall be designated for the purpose, and the costs of such classification shall be fixed, assessed, collected, and paid as provided in such regulations and shall be credited to the account referred to in section 55 of this title. The Secretary may provide by regulation conditions under which cotton samples submitted or used in the performance of services authorized by this act shall become the property of the United States and may be sold and the proceeds credited to the foregoing account: Provided, That such cotton samples shall not be subject to the provisions of chapters 1 to 11 of title 40 and division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41. The Secretary is authorized to prescribe regulations for carrying out the purposes of this subparagraph and the certificates of the officers of the Government as to the classification of any cotton for the purposes of this subparagraph shall be accepted in the courts of the United States in all suits between the parties to such contract, or their privies, as prima facie evidence of the true classification of the cotton involved.
(2) Incorporation of conditions in contracts
The provisions of paragraphs (1)(C), (D), (E), (F), and (G) shall be deemed fully incorporated into any such contract if there be written or printed thereon, or on the memorandums evidencing the same, at or prior to the time the same is signed, the phrase "Subject to United States Cotton Futures Act, subsection (f)."
(3) Delivery allowances
For the purpose of this subsection, the differences above or below the contract price which the receiver shall pay for cotton of grades above or below the basic 1 grade in the settlement of a contract of sale for the future delivery of cotton shall be determined by the actual commercial differences in value thereof upon the sixth business day prior to the day fixed, in accordance with paragraph (1)(F), for the delivery of cotton on the contract, established by the sale of spot cotton in the spot markets of not less than five places designated for the purpose from time to time by the Secretary, as such values were established by the sales of spot cotton, in such designated five or more markets. For purposes of this paragraph, such values in the such spot markets shall be based upon the standards for grades of cotton established by the Secretary. Whenever the value of one grade is to be determined from the sale or sales of spot cotton of another grade or grades, such value shall be fixed in accordance with rules and regulations which shall be prescribed for the purpose by the Secretary.
(g) Tendered grade contracts
(1) Conditions
Each tendered grade cotton future contract shall comply with each of the following conditions:
(A) Compliance with subsection (f)
Comply with all the terms and conditions of subsection (f) not inconsistent with this subsection; and
(B) Provision for contingent specific performance
Provide that, in case cotton of grade or grades other than the basis grade specified in the contract shall be tendered in performance of the contract, the parties to such contract may agree, at the time of the tender, as to the price of the grade or grades so tendered, and that if they shall not then agree as to such price, then, and in that event, the buyer of said contract shall have the right to demand the specific fulfillment of such contract by the actual delivery of cotton of the basis grade named therein and at the price specified for such basis grade in said contract.
(2) Incorporation of conditions in contract
Contracts made in compliance with this subsection shall be known as "subsection (g) Contracts". The provisions of this subsection shall be deemed fully incorporated into any such contract if there be written or printed thereon, or on the memorandum evidencing the same, at or prior to the time the same is signed, the phrase "Subject to United States Cotton Futures Act, subsection (g)".
(3) Application of subsection
Nothing in this subsection shall be so construed as to authorize any contract in which, or in the settlement of or in respect to which, any device or arrangement whatever is resorted to, or any agreement is made, for the determination or adjustment of the price of the grade or grades tendered other than the basis grade specified in the contract by any "fixed difference" system, or by arbitration, or by any other method not provided for by this section.
(h) Specific grade contracts
(1) Conditions
Each specific grade cotton futures contract shall comply with each of the following conditions:
(A) Conformity with rules and regulations
Conform to the rules and regulations made pursuant to this section.
(B) Specification of grade, price, dates of sale and delivery
Specify the grade, type, sample, or description of the cotton involved in the contract, the price per pound at which such cotton is contracted to be bought or sold, the date of the purchase or sale, and the time when shipment or delivery of such cotton is to be made.
(C) Prohibition of delivery of other than specified grade
Provide that cotton of or within the grade or of the type, or according to the sample or description, specified in the contract shall be delivered thereunder, and that no cotton which does not conform to the type, sample, or description, or which is not of or within the grade specified in the contract shall be tendered or delivered thereunder.
(D) Provision for specific performance
Provide that the delivery of cotton under the contract shall not be effected by means of "setoff" or "ring" settlement, but only by the actual transfer of the specified cotton mentioned in the contract.
(2) Incorporation of conditions in contract
The provisions of paragraphs (1)(A), (C), and (D) shall be deemed fully incorporated into any such contract if there be written or printed thereon, or on the document or memorandum evidencing the same, at or prior to the time the same is entered into, the words "Subject to United States Cotton Futures Act, subsection (h)".
(3) Application of subsection
This subsection shall not be construed to apply to any contract of sale made in compliance with subsection (f) or (g).
(i) Liability of principal for acts of agent
When construing and enforcing the provisions of this section, the act, omission, or failure of any official, agent, or other person acting for or employed by any association, partnership, or corporation within the scope of his employment or office shall, in every case, also be deemed the act, omission, or failure of such association, partnership, or corporation, as well as that of the person.
(j) Regulations
The Secretary is authorized to make such regulations with the force and effect of law as he determines may be necessary to carry out the provisions of this section and the powers vested in him by this section.
(k) Violations
Any person who knowingly violates any regulation made in pursuance of this section, shall, upon conviction thereof, be fined not less than $100 nor more than $500, for each violation thereof, in the discretion of the court, and, in case of natural persons, may, in addition be punished by imprisonment for not less than 30 days nor more than 90 days, for each violation, in the discretion of the court except that this subsection shall not apply to violations subject to subsection (d)(3).
(l) Applicability to contracts prior to effective date
The provisions of this section shall not apply to any cotton futures contract entered into prior to the effective date of this section or to any act or failure to act by any person prior to such effective date and all such prior contracts, acts or failure to act shall continue to be governed by the applicable provisions of the Internal Revenue Code of 1954 2 as in effect prior to the enactment of this section. All designations of bona fide spot markets and all rules and regulations issued by the Secretary pursuant to the applicable provisions of the Internal Revenue Code of 1954 2 which were in effect on the effective date of this section, shall remain fully effective as designations and regulations under this section until superseded, amended, or terminated by the Secretary.
(m) Authorization
There are authorized to be appropriated such sums as may be necessary to carry out this section.
(Pub. L. 94–455, title XIX, §1952(a)–(m), Oct. 4, 1976, 90 Stat. 1841–1846; Pub. L. 97–35, title I, §156(c), Aug. 13, 1981, 95 Stat. 374; Pub. L. 102–237, title I, §123, Dec. 13, 1991, 105 Stat. 1844; Pub. L. 106–472, title III, §311, Nov. 9, 2000, 114 Stat. 2076; Pub. L. 114–36, §1(a), July 20, 2015, 129 Stat. 435.)
Editorial Notes
References in Text
The Commodity Exchange Act, referred to in subsec. (c)(1), is act Sept. 21, 1922, ch. 369, 42 Stat. 998, which is classified generally to chapter 1 (§1 et seq.) of this title. For complete classification of this Act to the Code, see section 1 of this title and Tables.
The United States Cotton Standards Act, referred to in subsec. (c)(5), is act Mar. 4, 1923, ch. 288, 42 Stat. 1517, which is classified generally to chapter 2 (§51 et seq.) of this title. For complete classification of this Act to the Code, see section 51 of this title and Tables.
The Internal Revenue Code of 1954, referred to in subsec. (l), was redesignated the Internal Revenue Code of 1986 by Pub. L. 99–514, §2, Oct. 22, 1986, 100 Stat. 2095, and is classified to Title 26, Internal Revenue Code.
Codification
Section was enacted as part of the Tax Reform Act of 1976, and not as part of the Commodity Exchange Act which comprises this chapter.
Section is comprised of section 1952(a)–(m) of Pub. L. 94–455. Section 1952(b) of Pub. L. 94–455 repealed subchapter D of former chapter 39 of Title 26, Internal Revenue Code. See Prior Provisions note preceding section 4701 of Title 26.
This section, referred to in subsec. (c)(1), was in the original a reference to this "Act", meaning the United States Cotton Futures Act, which comprises this section.
In subsec. (f)(1)(G), "chapters 1 to 11 of title 40 and division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41" substituted for "the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 471 et seq.)" on authority of Pub. L. 107–217, §5(c), Aug. 21, 2002, 116 Stat. 1303, which Act enacted Title 40, Public Buildings, Property, and Works, and Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
Amendments
2015—Subsec. (c)(1). Pub. L. 114–36 inserted a dash after "except that", designated "any cotton futures contract that, by its terms, is settled in cash is excluded from the coverage of this paragraph and section." as subpar. (A), and added subpar. (B).
2000—Subsec. (d)(2). Pub. L. 106–472 inserted at end "A person complying with the preceding sentence shall not be liable for any loss or damage arising or resulting from such compliance."
1991—Subsec. (c)(1). Pub. L. 102–237 inserted before period at end ", except that any cotton futures contract that, by its terms, is settled in cash is excluded from the coverage of this paragraph and section".
1981—Subsec. (f)(1)(G). Pub. L. 97–35 inserted provisions relating to crediting to account referred to in section 55 of this title and provisions respecting cotton samples submitted or used becoming the property of the United States.
Statutory Notes and Related Subsidiaries
Effective Date of 2015 Amendment
Pub. L. 114–36, §1(b), July 20, 2015, 129 Stat. 435, provided that: "The amendments made by subsection (a) [amending this section] shall apply with respect to cotton futures contracts entered into on or after the date of the enactment of this Act [July 20, 2015]."
Effective Date of 1981 Amendment
Amendment by Pub. L. 97–35 effective Oct. 1, 1981, see section 156(e) of Pub. L. 97–35, set out as an Effective Date note under section 61a of this title.
Effective Date
Pub. L. 94–455, title XIX, §1952(o), Oct. 4, 1976, 90 Stat. 1846, provided that: "The provisions of this section [enacting this section, amending section 6808 of Title 26, Internal Revenue Code, and repealing sections 7233 and 7263, subchapter D of chapter 39, and subchapter E of chapter 76 of Title 26] shall take effect on the 90th day after the date of the enactment of this Act [Oct. 4, 1976]."
1 So in original. Probably should be "basis".
2 See References in Text note below.
§16. Commission operations
(a) Cooperation with other agencies
The Commission may cooperate with any Department or agency of the Government, any State, territory, district, or possession, or department, agency, or political subdivision thereof, any foreign futures authority, any department or agency of a foreign government or political subdivision thereof, or any person.
(b) Employment of investigators, experts, Administrative Law Judges, consultants, clerks, and other personnel; contracts
(1) The Commission shall have the authority to employ such investigators, special experts, Administrative Law Judges, clerks, and other employees as it may from time to time find necessary for the proper performance of its duties and as may be from time to time appropriated for by Congress.
(2) The Commission may employ experts and consultants in accordance with section 3109 of title 5, and compensate such persons at rates not in excess of the maximum daily rate prescribed for GS–18 under section 5332 of title 5.
(3) The Commission shall also have authority to make and enter into contracts with respect to all matters which in the judgment of the Commission are necessary and appropriate to effectuate the purposes and provisions of this chapter, including, but not limited to, the rental of necessary space at the seat of Government and elsewhere.
(4) The Commission may request (in accordance with the procedures set forth in subchapter II of chapter 31 of title 5) and the Office of Personnel Management shall authorize pursuant to the request, eight positions in the Senior Executive Service in addition to the number of such positions authorized for the Commission on October 28, 1992.
(c) Expenses
All of the expenses of the Commissioners, including all necessary expenses for transportation incurred by them while on official business of the Commission, shall be allowed and paid on the presentation of itemized vouchers therefor approved by the Commission.
(d) Authorization of appropriations
There are authorized to be appropriated such sums as are necessary to carry out this chapter for each of the fiscal years 2008 through 2013.
(e) Relation to other law, departments, or agencies
(1) Nothing in this chapter shall supersede or preempt—
(A) criminal prosecution under any Federal criminal statute;
(B) the application of any Federal or State statute (except as provided in paragraph (2)), including any rule or regulation thereunder, to any transaction in or involving any commodity, product, right, service, or interest—
(i) that is not conducted on or subject to the rules of a registered entity or exempt board of trade;
(ii) (except as otherwise specified by the Commission by rule or regulation) that is not conducted on or subject to the rules of any board of trade, exchange, or market located outside the United States, its territories or possessions; or
(iii) that is not subject to regulation by the Commission under section 6c or 23 of this title; or
(C) the application of any Federal or State statute, including any rule or regulation thereunder, to any person required to be registered or designated under this chapter who shall fail or refuse to obtain such registration or designation.
(2) This chapter shall supersede and preempt the application of any State or local law that prohibits or regulates gaming or the operation of bucket shops (other than antifraud provisions of general applicability) in the case of—
(A) an electronic trading facility excluded under section 2(e) 1 of this title; and
(B) an agreement, contract, or transaction that is excluded from this chapter under section 2(c) or 2(f) of this title or sections 27 to 27f of this title, or exempted under section 6(c) of this title (regardless of whether any such agreement, contract, or transaction is otherwise subject to this chapter).
(f) Investigative assistance to foreign futures authorities
(1) On request from a foreign futures authority, the Commission may, in its discretion, provide assistance in accordance with this section if the requesting authority states that the requesting authority is conducting an investigation which it deems necessary to determine whether any person has violated, is violating, or is about to violate any laws, rules or regulations relating to futures or options matters that the requesting authority administers or enforces. The Commission may conduct such investigation as the Commission deems necessary to collect information and evidence pertinent to the request for assistance. Such assistance may be provided without regard to whether the facts stated in the request would also constitute a violation of the laws of the United States.
(2) In deciding whether to provide assistance under this subsection, the Commission shall consider whether—
(A) the requesting authority has agreed to provide reciprocal assistance to the Commission in futures and options matters; and
(B) compliance with the request would prejudice the public interest of the United States.
(3) Notwithstanding any other provision of law, the Commission may accept payment and reimbursement, in cash or in kind, from a foreign futures authority, or made on behalf of such authority, for necessary expenses incurred by the Commission, its members, and employees in carrying out any investigation, or in providing any other assistance to a foreign futures authority, pursuant to this section. Any payment or reimbursement accepted shall be considered a reimbursement to the appropriated funds of the Commission.
(g) Computerized futures trading
Consistent with its responsibilities under section 22 of this title, the Commission is directed to facilitate the development and operation of computerized trading as an adjunct to the open outcry auction system. The Commission is further directed to cooperate with the Office of the United States Trade Representative, the Department of the Treasury, the Department of Commerce, and the Department of State in order to remove any trade barriers that may be imposed by a foreign nation on the international use of electronic trading systems.
(h) Regulation of swaps as insurance under State law
A swap—
(1) shall not be considered to be insurance; and
(2) may not be regulated as an insurance contract under the law of any State.
(Sept. 21, 1922, ch. 369, §12, 42 Stat. 1003; Pub. L. 93–463, title I, §101(b), Oct. 23, 1974, 88 Stat. 1391; Pub. L. 95–405, §20, Sept. 30, 1978, 92 Stat. 875; Pub. L. 97–444, title II, §§228, 229, Jan. 11, 1983, 96 Stat. 2318; Pub. L. 99–641, title I, §106, Nov. 10, 1986, 100 Stat. 3558; Pub. L. 102–546, title II, §§216, 220(a), title III, §§302, 303, title IV, §401, title V, §502(c), Oct. 28, 1992, 106 Stat. 3611, 3614, 3622, 3624, 3631; Pub. L. 104–9, §2, Apr. 21, 1995, 109 Stat. 154; Pub. L. 106–554, §1(a)(5) [title I, §§116, 117], Dec. 21, 2000, 114 Stat. 2763, 2763A-402; Pub. L. 110–234, title XIII, §13104, May 22, 2008, 122 Stat. 1434; Pub. L. 110–246, §4(a), title XIII, §13104, June 18, 2008, 122 Stat. 1664, 2196; Pub. L. 111–203, title VII, §§722(b), 749(f), July 21, 2010, 124 Stat. 1673, 1747.)
Editorial Notes
References in Text
Section 2(e) of this title relating to the exclusion of electronic trading facilities, referred to in subsec. (e)(2)(A), was struck out by Pub. L. 111–203, title VII, §723(a)(1)(A), July 21, 2010, 124 Stat. 1675.
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2010—Subsec. (e)(2)(B). Pub. L. 111–203, §749(f), substituted "section 2(c) or 2(f) of this title" for "section 2(c), 2(d), 2(f), or 2(g) of this title" and struck out "2(h) or" before "6(c)".
Subsec. (h). Pub. L. 111–203, §722(b), added subsec. (h).
2008—Subsec. (d). Pub. L. 110–246, §13104, amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: "There are authorized to be appropriated such sums as are necessary to carry out this chapter for each of fiscal years 1995 through 2005."
2000—Subsec. (d). Pub. L. 106–554, §1(a)(5) [title I, §116], substituted "2005" for "2000".
Subsec. (e). Pub. L. 106–554, §1(a)(5) [title I, §117], added subsec. (e) and struck out former subsec. (e) which provided that this chapter did not supersede or preempt criminal prosecutions under Federal criminal statutes or the application of any Federal or State statute to certain specified transactions and persons.
1995—Subsec. (d). Pub. L. 104–9 amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: "There are authorized to be appropriated to carry out this chapter—
"(1) $53,000,000 for fiscal year 1993; and
"(2) $60,000,000 for fiscal year 1994."
1992—Subsec. (a). Pub. L. 102–546, §302, inserted "any foreign futures authority, any department or agency of a foreign government or political subdivision thereof," after "thereof,".
Subsec. (b). Pub. L. 102–546, §216, designated first through third sentences as pars. (1) to (3), respectively, and added par. (4).
Subsec. (d). Pub. L. 102–546, §401, amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: "There are authorized to be appropriated to carry out this chapter such sums as may be necessary for each of the fiscal years during the period beginning October 1, 1986, and ending September 30, 1989."
Subsec. (e)(2)(A). Pub. L. 102–546, §502(c), inserted "or, in the case of any State or local law that prohibits or regulates gaming or the operation of 'bucket shops' (other than antifraud provisions of general applicability), that is not a transaction or class of transactions that has received or is covered by the terms of any exemption previously granted by the Commission under subsection (c) of section 6 of this title," after "market,".
Subsec. (f). Pub. L. 102–546, §303, added subsec. (f).
Subsec. (g). Pub. L. 102–546, §220(a), added subsec. (g).
1986—Subsec. (d). Pub. L. 99–641 amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: "There are authorized to be appropriated to carry out the provisions of this chapter such sums as may be required for each of the fiscal years during the period beginning October 1, 1982, and ending September 30, 1986."
1983—Subsec. (d). Pub. L. 97–444, §228, substituted appropriation authorization for fiscal years during period beginning Oct. 1, 1982, and ending Sept. 30, 1986, for prior authorization for fiscal years during period beginning Oct. 1, 1978, and ending Sept. 30, 1982.
Subsec. (e). Pub. L. 97–444, §229, added subsec. (e).
1978—Subsec. (d). Pub. L. 95–405 substituted "for each of the fiscal years during the period beginning October 1, 1978, and ending September 30, 1982" for "for the fiscal year ending June 30, 1975, for the fiscal year ending June 30, 1976, for the fiscal year ending June 30, 1977, and for the fiscal year ending June 30, 1978".
1974—Pub. L. 93–463 designated existing unlettered provisions as subsecs. (a) to (d), substituted "Commission" for "Secretary of Agriculture", inserted provisions authorizing the expenditure of funds for expenses upon the presentation of itemized vouchers therefor approved by the Commission, substituted provisions authorizing appropriations specifically for fiscal years ending June 30, 1975, 1976, 1977, and 1978, for provisions making a general authorization of appropriations without a fiscal year limitation, and inserted authorization to enter into contracts and compensate experts and consultants in accordance with section 3109 of title 5 at rates not in excess of the maximum daily rate prescribed for GS–18 under section 5332 of title 5.
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–405 effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as a note under section 2 of this title.
Effective Date of 1974 Amendment
For effective date of amendment by Pub. L. 93–463, see section 418 of Pub. L. 93–463, set out as a note under section 2 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.
1 See References in Text note below.
§16a. Service fees and National Futures Association study
(a) Development and implementation of plan for user fees; report to and approval by Congressional committees
Notwithstanding any other provision of law, the Commodity Futures Trading Commission may develop and implement a plan to charge and collect reasonable fees to cover the estimated cost of regulating transactions under the jurisdiction of the Commission. However, prior to implementing such a plan, the Commission shall report its intention to do so to the House Committee on Agriculture and the Senate Committee on Agriculture, Nutrition, and Forestry. The Commission shall include in its report the feasibility and desirability of collecting such fees. Any plan developed under this section shall not be implemented until approved by the House Committee on Agriculture and the Senate Committee on Agriculture, Nutrition, and Forestry. Fees collected under any plan approved under this section shall be deposited in the Treasury of the United States as miscellaneous receipts.
(b) National Futures Association regulatory experience; report; contents
The Commodity Futures Trading Commission shall submit to Congress a report containing the results of a study of the regulatory experience of the National Futures Association for the period beginning January 1, 1983 and ending September 30, 1985. The report shall be submitted not later than January 1, 1986. The report shall include (but not to be limited to) the following—
(1) the extent to which the National Futures Association has fully implemented the program provided in the rules approved by the Commission under section 17(p) and (q) of the Commodity Exchange Act [7 U.S.C. 21(p), (q)] and the effectiveness of the operation of such program;
(2) the actual and projected cost savings to the Federal Government, if any, resulting from operations of the National Futures Association;
(3) the actual and projected costs which the Commission and the public would have incurred if the Association had not undertaken self-regulatory responsibility for certain areas under the Commission's jurisdiction;
(4) problem areas, if any, encountered by the Association;
(5) the nature of the working relationship between the Association and the Commission;
(6) an assessment of the actual and projected efficiencies the Commission has achieved or expects to be achieved as a result of the continuing regulatory activities of the Association; and
(7) the immediate and projected capabilities of the Commission at the time of submission of the study to turn its attention to more immediate problems of regulation, as a result of the activities of the Association.
(c) Schedule of fees for services, activities and functions; notice and hearing; actual cost standard
Nothing in this section shall limit the authority of the Commission to promulgate, after notice and opportunity for hearing, a schedule of appropriate fees to be charged for services rendered and activities and functions performed by the Commission in conjunction with its administration and enforcement of the Commodity Exchange Act [7 U.S.C. 1 et seq.]: Provided, That the fees for any specified service or activity or function shall not exceed the actual cost thereof to the Commission.
(Pub. L. 95–405, §26, Sept. 30, 1978, 92 Stat. 877; Pub. L. 97–444, title II, §237, Jan. 11, 1983, 96 Stat. 2325.)
Editorial Notes
References in Text
The Commodity Exchange Act, referred to in subsec. (c), is act Sept. 21, 1922, ch. 369, 42 Stat. 998, which is classified generally to chapter 1 (§1 et seq.) of this title. For complete classification of this Act to the Code, see section 1 of this title and Tables.
Codification
Section was enacted as part of the Futures Trading Act of 1978, and not as part of the Commodity Exchange Act which comprises this chapter.
Amendments
1983—Pub. L. 97–444 designated existing provisions as subsec. (a) and added subsecs. (b) and (c).
Statutory Notes and Related Subsidiaries
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date
Section effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as an Effective Date of 1978 Amendment note under section 2 of this title.
Study of Assessments on Transactions
Pub. L. 102–546, title II, §218, Oct. 28, 1992, 106 Stat. 3612, required the Comptroller General to conduct a study to determine whether it was feasible to fund some or all of the enforcement and market surveillance activities of the Commodity Futures Trading Commission through the imposition of an assessment on commodity futures and options transactions executed pursuant to the Commodity Exchange Act, and report, by one year after Oct. 28, 1992, to Congress the Commission determinations together with any appropriate recommendations for the implementation of such a program of assessment-based funding.
§17. Separability
If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the chapter and of the application of such provision to other persons and circumstances shall not be affected thereby.
(Sept. 21, 1922, ch. 369, §10, 42 Stat. 1003.)
§17a. Separability of 1936 amendment
If any provision of the act of June 15, 1936, ch. 545, 49 Stat. 1491, which amends this chapter, or the application thereof to any person or circumstances is held invalid, the provisions of the section of this chapter which is amended by such provision of said act shall apply to such person or circumstances. No proceeding shall be abated by reason of any amendment to this chapter made by said act but shall be disposed of pursuant to said act.
(June 15, 1936, ch. 545, §12, 49 Stat. 1501.)
Editorial Notes
Codification
Section was not enacted as part of the Commodity Exchange Act which comprises this chapter.
Statutory Notes and Related Subsidiaries
Effective Date
For effective date of section, see section 13 of act June 15, 1936, set out as an Effective Date of 1936 Amendment note under section 1 of this title.
§17b. Separability of 1968 amendment
If any provision of this Act or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the Act and the application of such provision to other persons or circumstances shall not be affected thereby, and the provisions of the section of this chapter which is amended by such provision of this Act shall apply to such person or circumstances. Pending proceedings shall not be abated by reason of any provision of this Act but shall be disposed of pursuant to the provisions of this chapter, in effect prior to the effective date of this Act.
(Pub. L. 90–258, §27, Feb. 19, 1968, 82 Stat. 34.)
Editorial Notes
References in Text
This Act, referred to in text, is Pub. L. 90–258, Feb. 19, 1968, 82 Stat. 26. For complete classification of this Act to the Code, see Tables.
Effective date of this Act, referred to in text, as one hundred and twenty days after Feb. 19, 1968, see section 28 of Pub. L. 90–258, set out as an Effective Date of 1968 Amendment note under section 2 of this title.
Codification
Section was not enacted as part of the Commodity Exchange Act which comprises this chapter.
§18. Complaints against registered persons
(a) Petition for actual damages
(1) Any person complaining of any violation of any provision of this chapter, or any rule, regulation, or order issued pursuant to this chapter, by any person who is registered under this chapter may, at any time within two years after the cause of action accrues, apply to the Commission for an order awarding—
(A) actual damages proximately caused by such violation. If an award of actual damages is made against a floor broker in connection with the execution of a customer order, and the futures commission merchant which selected the floor broker for the execution of the customer order is held to be responsible under section 2(a)(1) of this title for the floor broker's violation, such futures commission merchant may be required to satisfy such award; and
(B) in the case of any action arising from a willful and intentional violation in the execution of an order on the floor of a registered entity, punitive or exemplary damages equal to no more than two times the amount of such actual damages. If an award of punitive or exemplary damages is made against a floor broker in connection with the execution of a customer order, and the futures commission merchant which selected the floor broker for the execution of the customer order is held to be responsible under section 2(a)(1) of this title for the floor broker's violation, such futures commission merchant may be required to satisfy such award if the floor broker fails to do so, except that such requirement shall apply to the futures commission merchant only if it willfully and intentionally selected the floor broker with the intent to assist or facilitate the floor broker's violation.
(2)(A) An action may be brought under this subsection by any one or more persons described in this subsection for and in behalf of such person or persons and other persons similarly situated, if the Commission permits such actions pursuant to a final rule issued by the Commission.
(B) Not later than two hundred and seventy days after October 28, 1992, the Commission shall propose and publish for public comment such rules as are necessary to carry out subparagraph (A). In developing such rules, the Commission shall consider the potential impact of such actions on resources available to the reparations system established under this chapter and the relative merits of bringing such actions in Federal court.
(b) Rules and regulations; control over right of appeal
The Commission may promulgate such rules, regulations, and orders as it deems necessary or appropriate for the efficient and expeditious administration of this section. Notwithstanding any other provision of law, such rules, regulations, and orders may prescribe, or otherwise condition, without limitation, the form, filing, and service of pleadings or orders, the nature and scope of discovery, counterclaims, motion practice (including the grounds for dismissal of any claim or counterclaim), hearings (including the waiver thereof, which may relate to the amount in controversy), rights of appeal, if any, and all other matters governing proceedings before the Commission under this section.
(c) Bond requirement when complainant is nonresident; waiver
In case a complaint is made by a nonresident of the United States, the complainant shall be required, before any formal action is taken on his complaint, to furnish a bond in double the amount of the claim conditioned upon the payment of costs, including a reasonable attorney's fee for the respondent if the respondent shall prevail, and any reparation award that may be issued by the Commission against the complainant on any counterclaim by respondent: Provided, That the Commission shall have authority to waive the furnishing of a bond by a complainant who is a resident of a country which permits the filing of a complaint by a resident of the United States without the furnishing of a bond.
(d) Enforcement of reparation award
(1) If any person against whom an award has been made does not pay the reparation award within the time specified in the Commission's order, the complainant, or any person for whose benefit such order was made, within three years of the date of the order, may file a certified copy of the order of the Commission, in the district court of the United States for the district in which he resides or in which is located the principal place of business of the respondent, for enforcement of such reparation award by appropriate orders. The orders, writs, and processes of such district court may in such case run, be served, and be returnable anywhere in the United States. The petitioner shall not be liable for costs in the district court, nor for costs at any subsequent state of the proceedings, unless they accrue upon his appeal. If the petitioner finally prevails, he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit. Subject to the right of appeal under subsection (e) of this section, an order of the Commission awarding reparations shall be final and conclusive.
(2) A reparation award shall be directly enforceable in district court as if it were a judgment pursuant to section 1963 of title 28. This paragraph shall operate retroactively from the effective date of its enactment, and shall apply to all reparation awards for which a proceeding described in paragraph (1) is commenced within 3 years of the date of the Commission's order.
(e) Review
Any order of the Commission entered hereunder shall be reviewable on petition of any party aggrieved thereby, by the United States Court of Appeals for any circuit in which a hearing was held, or if no hearing was held, any circuit in which the appellee is located, under the procedure provided in section 9 of this title. Such appeal shall not be effective unless within 30 days from and after the date of the reparation order the appellant also files with the clerk of the court a bond in double the amount of the reparation awarded against the appellant conditioned upon the payment of the judgment entered by the court, plus interest and costs, including a reasonable attorney's fee for the appellee, if the appellee shall prevail. Such bond shall be in the form of cash, negotiable securities having a market value at least equivalent to the amount of bond prescribed, or the undertaking of a surety company on the approved list of sureties issued by the Treasury Department of the United States. The appellee shall not be liable for costs in said court. If the appellee prevails, he shall be allowed a reasonable attorney's fee to be taxed and collected as a part of his costs.
(f) Automatic bar from trading and suspension for noncompliance; effect of appeal
Unless the party against whom a reparation order has been issued shows to the satisfaction of the Commission within fifteen days from the expiration of the period allowed for compliance with such order that either an appeal as herein authorized has been taken or payment of the full amount of the order (or any agreed settlement thereof) has been made, such party shall be prohibited automatically from trading on all registered entities and, if the party is registered with the Commission, such registration shall be suspended automatically at the expiration of such fifteen-day period until such party shows to the satisfaction of the Commission that payment of such amount with interest thereon to date of payment has been made: Provided, That if on appeal the appellee prevails or if the appeal is dismissed, the automatic prohibition against trading and suspension of registration shall become effective at the expiration of thirty days from the date of judgment on the appeal, but if the judgment is stayed by a court of competent jurisdiction, the suspension shall become effective ten days after the expiration of such stay, unless prior thereto the judgment of the court has been satisfied.
(g) Predispute resolution agreements for institutional customers
Nothing in this section prohibits a registered futures commission merchant from requiring a customer that is an eligible contract participant, as a condition to the commission merchant's conducting a transaction for the customer, to enter into an agreement waiving the right to file a claim under this section.
(Sept. 21, 1922, ch. 369, §14, as added Pub. L. 93–463, title I, §106, Oct. 23, 1974, 88 Stat. 1393; amended Pub. L. 94–16, §3, Apr. 16, 1975, 89 Stat. 77; Pub. L. 95–405, §21, Sept. 30, 1978, 92 Stat. 875; Pub. L. 97–444, title II, §231, Jan. 11, 1983, 96 Stat. 2319; Pub. L. 102–546, title II, §§209(b)(7), 222(b), 224, title IV, §402(11), Oct. 28, 1992, 106 Stat. 3607, 3615, 3617, 3625; Pub. L. 106–554, §1(a)(5) [title I, §§118, 123(a)(23)], Dec. 21, 2000, 114 Stat. 2763, 2763A-403, 2763A-410; Pub. L. 110–234, title XIII, §13105(k), May 22, 2008, 122 Stat. 1435; Pub. L. 110–246, §4(a), title XIII, §13105(k), June 18, 2008, 122 Stat. 1664, 2197.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2008—Subsec. (d). Pub. L. 110–246, §13105(k), designated existing provisions as par. (1) and added par. (2).
2000—Subsec. (a)(1)(B). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(23)(A)], substituted "registered entity" for " contract market".
Subsec. (f). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(23)(B)], substituted "registered entities" for " contract markets".
Subsec. (g). Pub. L. 106–554, §1(a)(5) [title I, §118], added subsec. (g) and struck out former subsec. (g) which read as follows: "The provisions of this section shall not become effective until fifteen months after October 23, 1974: Provided, That claims which arise within one year immediately prior to the effective date of this section may be heard by the Commission after such 15-month period."
1992—Subsec. (a). Pub. L. 102–546, §224, designated existing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, and added par. (2).
Pub. L. 102–546, §222(b), substituted "awarding—" and pars. (1) and (2) for "awarding actual damages proximately caused by such violation."
Subsec. (e). Pub. L. 102–546, §209(b)(7), made technical amendment to reference to sections 9 and 15 of this title to reflect change in reference to corresponding section of original act.
Subsec. (g). Pub. L. 102–546, §402(11), substituted "15-month" for second reference to "fifteen months".
1983—Subsec. (a). Pub. L. 97–444, §231(1), substituted provisions relating to complaints against violations by persons "registered under this chapter" for provisions relating to complaints against persons "registered or required to be registered under section 6d, 6e, 6j, or 6m of this title", and substituted provisions for application to Commission for an award of actual damages caused by such violation, for provisions authorizing application to Commission by petition, and forwarding of complaint, if warranted, to respondent for satisfaction or answer.
Subsec. (b). Pub. L. 97–444, §231(2), substituted provisions relating to promulgation by Commission of rules, regulations, and orders necessary or appropriate for administration of this section, including rules of practice and procedure governing proceedings before the Commission, for provisions relating to investigation and service of complaint by Commission, and hearing thereon before an Administrative Law Judge, except that where amount claimed as damages did not exceed $5,000, hearing need not be held, and proofs could be supplied by deposition or verified statements of fact.
Subsec. (c). Pub. L. 97–444, §231(3), (4), redesignated subsec. (d) as (c). Former subsec. (c), which provided that after opportunity for hearing on complaints where the damages claimed exceeded the sum of $5,000 had been provided or waived and on complaints where damages claimed did not exceed the sum of $5,000 not requiring hearing as provided herein, Commission would determine whether or not the respondent had violated any provision of this chapter or any rule, regulation, or order thereunder, was struck out.
Subsec. (d). Pub. L. 97–444, §231(4), (5), redesignated subsec. (f) as (d) and substituted "subsection (e)" for "subsection (g)". Former subsec. (d) was redesignated (c).
Subsec. (e). Pub. L. 97–444, §231(3), (4), redesignated subsec. (g) as (e). Former subsec. (e), which provided that if, after a hearing on a complaint made by any person under subsection (a) of this section, or without hearing as provided in subsections (b) and (c) of this section, or upon failure of the party complained against to answer a complaint duly served within the time prescribed, or to appear at a hearing after being duly notified, the Commission determined that the respondent had violated any provision of this chapter, or any rule, regulation, or order thereunder, the Commission would unless the offender had already made reparation to the person complaining, determine the amount of damage, if any, to which such person was entitled as a result of such violation and would make an order directing the offender to pay to such person complaining such amount on or before the date fixed in the order, and that if, after the respondent had filed his answer to the complaint, it appeared therein that the respondent had admitted liability for a portion of the amount claimed in the complaint as damages, the Commission under such rules and regulations as it would prescribe, unless the respondent had already made reparation to the person complaining, could issue an order directing the respondent to pay to the complainant the undisputed amount on or before the date fixed in the order, leaving the respondent's liability for the disputed amount for subsequent determination, with the remaining disputed amount to be determined in the same manner and under the same procedure as it would have been determined if no order had been issued by the Commission with respect to the undisputed sum, was struck out.
Subsec. (f). Pub. L. 97–444, §231(4), (6), redesignated subsec. (h) as (f), made certain grammatical changes, and inserted provision allowing party against whom a reparation order has been issued to show compliance by payment of the full amount of the order or any agreed settlement thereof.
Subsecs. (g) to (i). Pub. L. 97–444, §231(4), redesignated subsecs. (g), (h), and (i), as (e), (f), and (g), respectively.
1978—Subsec. (a). Pub. L. 95–405, §21(1), substituted "who is registered or required to be registered" for "registered".
Subsecs. (b), (c). Pub. L. 95–405, §21(2), (3), substituted "$5,000" for "$2,500" wherever appearing.
1975—Subsec. (i). Pub. L. 94–16 substituted "fifteen months" for "one year" in two places, and "one year" for "nine months".
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective 120 days after Jan. 11, 1983, or such earlier date as the Commission shall prescribe by regulation, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–405 effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as a note under section 2 of this title.
§19. Consideration of costs and benefits and antitrust laws
(a) Costs and benefits
(1) In general
Before promulgating a regulation under this chapter or issuing an order (except as provided in paragraph (3)), the Commission shall consider the costs and benefits of the action of the Commission.
(2) Considerations
The costs and benefits of the proposed Commission action shall be evaluated in light of—
(A) considerations of protection of market participants and the public;
(B) considerations of the efficiency, competitiveness, and financial integrity of futures markets;
(C) considerations of price discovery;
(D) considerations of sound risk management practices; and
(E) other public interest considerations.
(3) Applicability
This subsection does not apply to the following actions of the Commission:
(A) An order that initiates, is part of, or is the result of an adjudicatory or investigative process of the Commission.
(B) An emergency action.
(C) A finding of fact regarding compliance with a requirement of the Commission.
(b) Antitrust laws
The Commission shall take into consideration the public interest to be protected by the antitrust laws and endeavor to take the least anticompetitive means of achieving the objectives of this chapter, as well as the policies and purposes of this chapter, in issuing any order or adopting any Commission rule or regulation (including any exemption under section 6(c) or 6c(b) of this title), or in requiring or approving any bylaw, rule, or regulation of a contract market or registered futures association established pursuant to section 21 of this title.
(Sept. 21, 1922, ch. 369, §15, as added Pub. L. 93–463, title I, §107, Oct. 23, 1974, 88 Stat. 1395; amended Pub. L. 102–546, title V, §502(b), Oct. 28, 1992, 106 Stat. 3631; Pub. L. 106–554, §1(a)(5) [title I, §119], Dec. 21, 2000, 114 Stat. 2763, 2763A-403.)
Editorial Notes
Amendments
2000—Pub. L. 106–554 inserted section catchline, added subsec. (a), designated existing provisions as subsec. (b), and inserted subsec. (b) heading.
1992—Pub. L. 102–546 substituted "regulation (including any exemption under section 6(c) or 6c(b) of this title)" for "regulation".
Statutory Notes and Related Subsidiaries
Effective Date
For effective date of section, see section 418 of Pub. L. 93–463, set out as an Effective Date of 1974 Amendment note under section 2 of this title.
§20. Market reports
(a) Information
The Commission may conduct regular investigations of the markets for goods, articles, services, rights, and interests which are the subject of futures contracts, and furnish reports of the findings of these investigations to the public on a regular basis. These market reports shall, where appropriate, include information on the supply, demand, prices, and other conditions in the United States and other countries with respect to such goods, articles, services, rights, interests, and information respecting the futures markets.
(b) Avoidance of duplication
The Commission shall cooperate with the Department of Agriculture and any other Department or Federal agency which makes market investigations to avoid unnecessary duplication of information-gathering activities.
(c) Furnishing of information; confidentiality
The Department of Agriculture and any other Department or Federal agency which has market information sought by the Commission shall furnish it to the Commission upon the request of any authorized employee of the Commission. The Commission shall abide by any rules of confidentiality applying to such information.
(d) Disclosure of business transactions, market positions, trade secrets, or names of customers
The Commission shall not disclose in such reports data and information which would separately disclose the business transactions or market positions of any person and trade secrets or names of customers except as provided in section 12 of this title.
(e) Application
This section shall not apply to investigations involving any security underlying a security futures product.
(Sept. 21, 1922, ch. 369, §16, as added Pub. L. 93–463, title IV, §414, Oct. 23, 1974, 88 Stat. 1414; amended Pub. L. 97–444, title II, §232, Jan. 11, 1983, 96 Stat. 2320; Pub. L. 106–554, §1(a)(5) [title II, §251(e)], Dec. 21, 2000, 114 Stat. 2763, 2763A-443.)
Editorial Notes
Amendments
2000—Subsec. (e). Pub. L. 106–554 added subsec. (e).
1983—Subsec. (d). Pub. L. 97–444 prohibited disclosure of market positions.
Statutory Notes and Related Subsidiaries
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 418 of Pub. L. 93–463, set out as an Effective Date of 1974 Amendment note under section 2 of this title.
Study of Trading in Cattle Futures Contracts
Pub. L. 99–641, title I, §111, Nov. 10, 1986, 100 Stat. 3561, provided that:
"(a)
"(1) whether the reaction of the live cattle futures market to the results of the milk production termination program in March 1986, conducted under section 201(d)(3) of the Agricultural Act of 1949 (7 U.S.C. 1446(d)(3)), was based on and accurately reflected the then prevailing conditions of supply and demand;
"(2) the effect of the trading in contracts for the future delivery of live cattle on—
"(i) the price relationship between feeder cattle and fed cattle;
"(ii) the price discovery process with respect to live cattle; and
"(iii) price competition within the cattle industry;
"(3) the effect of the use of packer contracts, as a means of obtaining slaughter cattle, on the increase in short hedging in contracts for the future delivery of live cattle and the effect of this increase in short hedging on prices in the futures and cash markets;
"(4) the effect on the ability of the cash markets to accurately reflect prevailing conditions of supply and demand if packer contracts become the prevalent method of marketing fed cattle;
"(5) whether the present delivery system for contracts for the future delivery of live cattle creates any bias (either upward or downward) in the cash price for cattle;
"(6) whether the present delivery system for contracts for the future delivery of live cattle creates price volatility during the delivery month; and
"(7) whether there are advantages or disadvantages to a cash settlement system in lieu of the present delivery system in the case of contracts for the future delivery of live cattle.
"(b)
"(1)
"(2)
Potato Futures Study; Submission of Report to Congress
Pub. L. 95–405, §27, Sept. 30, 1978, 92 Stat. 877, required, within one year of Oct. 1, 1978, Secretary of Agriculture to (1) conduct a comprehensive study of marketing of Irish potatoes and of making and trading of contracts of sale for future delivery of Irish potatoes, including rules and regulations pertaining to such trading issued by Commodity Futures Trading Commission or any contract market designated by Commission; and (2) submit to each House of Congress a detailed report on results of such study, and that report should also include any proposals Secretary may have concerning any legislation needed to implement such recommendations and concerning any modifications and rules and regulations needed to improve regulation of such contracts by Commission or any contract market designated by Commission.
§21. Registered futures associations
(a) Registration statement
Any association of persons may be registered with the Commission as a registered futures association pursuant to subsection (b) of this section, under the terms and conditions hereinafter provided in this section, by filing with the Commission for review and approval a registration statement in such form as the Commission may prescribe, setting forth the information, and accompanied by the documents, below specified:
(1) Data as to its organization, membership, and rules of procedure, and such other information as the Commission may by rules and regulations require as necessary or appropriate in the public interest; and
(2) Copies of its constitution, charter, or articles of incorporation or association, with all amendments thereto, and of its bylaws, and of any rules or instruments corresponding to the foregoing, whatever the name, hereinafter in this section collectively referred to as the "rules of the association".
(b) Standards for registration; Commission findings
An applicant association shall not be registered as a futures association unless the Commission finds, under standards established by the Commission, that—
(1) such association is in the public interest and that it will be able to comply with the provisions of this section and the rules and regulations thereunder and to carry out the purposes of this section;
(2) the rules of the association provide that any person registered under this chapter, registered entity, or any other person designated pursuant to the rules of the Commission as eligible for membership may become a member of such association, except such as are excluded pursuant to paragraph (3) or (4) of this subsection, or a rule of the association permitted under this subparagraph. The rules of the association may restrict membership in such association on such specified basis relating to the type of business done by its members, or on such other specified and appropriate basis, as appears to the Commission to be necessary or appropriate in the public interest and to carryout the purpose of this section. Rules adopted by the association may provide that the association may, unless the Commission directs otherwise in cases in which the Commission finds it appropriate in the public interest so to direct, deny admission to, or refuse to continue in such association any person if (i) such person, whether prior or subsequent to becoming registered as such, or (ii) any person associated within the meaning of "associated person" as set forth in section 6k of this title, whether prior or subsequent to becoming so associated, has been and is suspended or expelled from a registered entity or has been and is barred or suspended from being associated with all members of such registered entity, for violation of any rule of such registered entity;
(3) the rules of the association provide that, except with the approval or at the direction of the Commission in cases in which the Commission finds it appropriate in the public interest so to approve or direct, no person shall be admitted to or continued in membership in such association, if such person—
(A) has been and is suspended or expelled from a registered futures association or from a registered entity or has been and is barred or suspended from being associated with all members of such association or from being associated with all members of such registered entity, for violation of any rule of such association or registered entity which prohibits any act or transaction constituting conduct inconsistent with just and equitable principles of trade, or requires any act the omission of which constitutes conduct inconsistent with just and equitable principles of trade;
(B) is subject to an order of the Commission denying, suspending, or revoking his registration pursuant to section 9 of this title, or expelling or suspending him from membership in a registered futures association or a registered entity, or barring or suspending him from being associated with a futures commission merchant;
(C) whether prior or subsequent to becoming a member, by his conduct while associated with a member, was a cause of any suspension, expulsion, or order of the character described in clause (A) or (B) which is in effect with respect to such member, and in entering such a suspension, expulsion, or order, the Commission or any such registered entity or association shall have jurisdiction to determine whether or not any person was a cause thereof; or
(D) has associated with him any person who is known, or in the exercise of reasonable care should be known, to him to be a person who would be ineligible for admission to or continuance in membership under clause (A), (B), or (C) of this paragraph;
(4) the rules of the association provide that, except with the approval or at the direction of the Commission in cases in which the Commission finds it appropriate in the public interest so to approve or direct, no person shall become a member and no natural person shall become a person associated with a member, unless such person is qualified to become a member or a person associated with a member in conformity with specified and appropriate standards with respect to the training, experience, and such other qualifications of such person as the association finds necessary or desirable, and in the case of a member, the financial responsibility of such a member. For the purpose of defining such standards and the application thereof, such rules may—
(A) appropriately classify prospective members (taking into account relevant matters, including type or nature of business done) and persons proposed to be associated with members;
(B) specify that all or any portion of such standard shall be applicable to any such class;
(C) require persons in any such class to pass examinations prescribed in accordance with such rules;
(D) provide that persons in any such class other than prospective members and partners, officers and supervisory employees (which latter term may be defined by such rules and as so defined shall include branch managers of members) of members, may be qualified solely on the basis of compliance with specified standards of training and such other qualifications as the association finds appropriate;
(E) provide that applications to become a member or a person associated with a member shall set forth such facts as the association may prescribe as to the training, experience, and other qualifications (including, in the case of an applicant for membership, financial responsibility) of the applicant and that the association shall adopt procedures for verification of qualifications of the applicant, which may require the applicant to be fingerprinted and to submit, or cause to be submitted, such fingerprints to the Attorney General for identification and appropriate processing. Notwithstanding any other provision of law, such an association may receive from the Attorney General all the results of such identification and processing; and
(F) require any class of persons associated with a member to be registered with the association in accordance with procedures specified by such rules (and any application or document supplemental thereto required by such rules of a person seeking to be registered with such association shall, for the purposes of section 9 of this title, be deemed an application required to be filed under this section);
(5) the rules of the association assure a fair representation of its members in the adoption of any rule of the association or amendment thereto, the selection of its officers and directors, and in all other phases of the administration of its affairs;
(6) the rules of the association provide for the equitable allocation of dues among its members, to defray reasonable expenses of administration;
(7) the rules of the association are designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, in general, to protect the public interest, and to remove impediments to and perfect the mechanism of free and open futures trading;
(8) the rules of the association provide that its members and persons associated with its members shall be appropriately disciplined, by expulsion, suspension, fine, censure, or being suspended or barred from being associated with all members, or any other fitting penalty, for any violation of its rules;
(9) the rules of the association provide a fair and orderly procedure with respect to the disciplining of members and persons associated with members and the denial of membership to any person seeking membership therein or the barring of any person from being associated with a member. In any proceeding to determine whether any member or other person shall be disciplined, such rules shall require that specific charges be brought; that such member or person shall be notified of, and be given an opportunity to defend against, such charges; that a record shall be kept; and that the determination shall include—
(A) a statement setting forth any act or practice in which such member or other person may be found to have engaged, or which such member or other person may be found to have omitted;
(B) a statement setting forth the specific rule or rules of the association of which any such act or practice, or omission to act, is deemed to be in violation;
(C) a statement whether the acts or practices prohibited by such rule or rules, or the omission of any act required thereby, are deemed to constitute conduct inconsistent with just and equitable principles of trade; and
(D) a statement setting forth the penalty imposed; 1
In any proceeding to determine whether a person shall be denied membership or whether any person shall be barred from being associated with a member, such rules shall provide that the person shall be notified of, and be given an opportunity to be heard upon, the specific grounds for denial or bar which are under consideration; that a record shall be kept; and that the determination shall set forth the specific grounds upon which the denial or bar is based;
(10) the rules of the association provide a fair, equitable, and expeditious procedure through arbitration or otherwise for the settlement of customers' claims and grievances against any member or employee thereof: Provided, That (A) the use of such procedure by a customer shall be voluntary, (B) the term "customer" as used in this paragraph shall not include another member of the association, and (C) in the case of a claim arising from a violation in the execution of an order on the floor of a registered entity, such procedure shall provide, to the extent appropriate—
(i) for payment of actual damages proximately caused by such violation. If an award of actual damages is made against a floor broker in connection with the execution of a customer order, and the futures commission merchant which selected the floor broker for the execution of the customer order is held to be responsible under section 2(a)(1) of this title for the floor broker's violation, such futures commission merchant may be required to satisfy such award; and
(ii) where the violation is willful and intentional, for payment to the customer of punitive or exemplary damages, in addition to losses proximately caused by the violation, in an amount equal to no more than two times the amount of such losses. If punitive or exemplary damages are awarded against a floor broker in connection with the execution of a customer order, and the futures commission merchant which selected the floor broker for the execution of such order is held to be responsible under section 2(a)(1) of this title for the floor broker's violation, such futures commission merchant may be required to satisfy the award of punitive or exemplary damages if the floor broker fails to do so, except that such requirement shall apply to the futures commission merchant only if it willfully and intentionally selected the floor broker with the intent to assist or facilitate the floor broker's violation; and 2
(11) such association provides for meaningful representation on the governing board of such association of a diversity of membership interests and provides that no less than 20 percent of the regular voting members of such board be comprised of qualified nonmembers of or persons who are not regulated by such association.3
(12)(A) 4 such association provides on all major disciplinary committees for a diversity of membership sufficient to ensure fairness and to prevent special treatment or preference for any person in the conduct of disciplinary proceedings and the assessment of penalties.5
(13) A 6 major disciplinary committee hearing a disciplinary matter shall include—
(A) qualified persons representing segments of the association membership other than that of the subject of the proceeding; and
(B) where appropriate to carry out the purposes of this paragraph, qualified persons who are not members of the association.
(c) Suspension of registration
The Commission may, after notice and opportunity for hearing, suspend the registration of any futures association if it finds that the rules thereof do not conform to the requirements of the Commission, and any such suspension shall remain in effect until the Commission issues an order determining that such rules have been modified to conform with such requirements.
(d) Fees and charges
In addition to the fees and charges authorized by section 12a(1) of this title, each person registered under this chapter, who is not a member of a futures association registered pursuant to this section, shall pay to the Commission such reasonable fees and charges as may be necessary to defray the costs of additional regulatory duties required to be performed by the Commission because such person is not a member of a registered futures association. The Commission shall establish such additional fees and charges by rules and regulations.
(e) Registered persons not members of registered associations
Any person registered under this chapter, who is not a member of a futures association registered pursuant to this section, in addition to the other requirements and obligations of this chapter and the regulations thereunder shall be subject to such other rules and regulations as the Commission may find necessary to protect the public interest and promote just and equitable principles of trade.
(f) Denial of registration
Upon filing of an application for registration pursuant to subsection (a), the Commission may by order grant such registration if the requirements of this section are satisfied. If, after appropriate notice and opportunity for hearing, it appears to the Commission that any requirement of this section is not satisfied, the Commission shall by order deny such registration.
(g) Withdrawal from registration; notice of withdrawal
A registered futures association may, upon such reasonable notice as the Commission may deem necessary in the public interest, withdraw from registration by filing with the Commission a written notice of withdrawal in such form as the Commission may by rules and regulations prescribe.
(h) Commission review of disciplinary actions taken by registered futures associations
(1) If any registered futures association takes any final disciplinary action against a member of the association or a person associated with a member, denies admission to any person seeking membership therein, or bars any person from being associated with a member, the association promptly shall give notice thereof to such member or person and file notice thereof with the Commission. The notice shall be in such form and contain such information as the Commission, by rule or regulation, may prescribe as necessary or appropriate to carry out the purposes of this chapter.
(2) Any action with respect to which a registered futures association is required by paragraph (1) to file notice shall be subject to review by the Commission on its motion, or on application by any person aggrieved by the action. Such application shall be filed within 30 days after the date such notice is filed with the Commission and received by the aggrieved person, or within such longer period as the Commission may determine.
(3)(A) Application to the Commission for review, or the institution of review by the Commission on its own motion, shall not operate as a stay of such action unless the Commission otherwise orders, summarily or after notice and opportunity for hearing on the question of a stay (which hearing may consist solely of the submission of affidavits or presentation of oral arguments).
(B) The Commission shall establish procedures for expedited consideration and determination of the question of a stay.
(i) Notice; hearing; findings; cancellation, reduction, or remission of penalties; review by court of appeals
(1) In a proceeding to review a final disciplinary action taken by a registered futures association against a member thereof or a person associated with a member, after appropriate notice and opportunity for a hearing (which hearing may consist solely of consideration of the record before the association and opportunity for the presentation of supporting reasons to affirm, modify, or set aside the sanction imposed by the association)—
(A) if the Commission finds that—
(i) the member or person associated with a member has engaged in the acts or practices, or has omitted the acts, that the association has found the member or person to have engaged in or omitted;
(ii) the acts or practices, or omissions to act, are in violation of the rules of the association specified in the determination of the association; and
(iii) such rules are, and were applied in a manner, consistent with the purposes of this chapter,
the Commission, by order, shall so declare and, as appropriate, affirm the sanction imposed by the association, modify the sanction in accordance with paragraph (2), or remand the case to the association for further proceedings; or
(B) if the Commission does not make any such finding, the Commission, by order, shall set aside the sanction imposed by the association and, if appropriate, remand the case to the association for further proceedings.
(2) If, after a proceeding under paragraph (1), the Commission finds that any penalty imposed on a member or person associated with a member is excessive or oppressive, having due regard for the public interest, the Commission, by order, shall cancel, reduce, or require the remission of the penalty.
(3) In a proceeding to review the denial of membership in a registered futures association or the barring of any person from being associated with a member, after appropriate notice and opportunity for a hearing (which hearing may consist solely of consideration of the record before the association and opportunity for the presentation of supporting reasons to affirm, modify, or set aside the action of the association)—
(A) if the Commission finds that—
(i) the specific grounds on which the denial or bar is based exist in fact;
(ii) the denial or bar is in accordance with the rules of the association; and
(iii) such rules are, and were applied in a manner, consistent with the purposes of this chapter,
the Commission, by order, shall so declare and, as appropriate, affirm or modify the action of the association, or remand the case to the association for further proceedings; or
(B) if the Commission does not make any such finding, the Commission, by order, shall set aside the action of the association and require the association to admit the applicant to membership or permit the person to be associated with a member, or, as appropriate, remand the case to the association for further proceedings.
(4) Any person aggrieved by a final order of the Commission entered under this subsection may file a petition for review with a United States court of appeals in the same manner as provided in section 9 of this title.
(j) Changes or additions to association rules
Every registered futures association shall file with the Commission in accordance with such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest, copies of any changes in or additions to the rules of the association, and such other information and documents as the Commission may require to keep current or to supplement the registration statement and documents filed pursuant to subsection (a) of this section. A registered futures association shall submit to the Commission any change in or addition to its rules and may make such rules effective ten days after receipt of such submission by the Commission unless, within the ten-day period, the registered futures association requests review and approval thereof by the Commission or the Commission notifies such registered futures association in writing of its determination to review such rules for approval. The Commission shall approve such rules if such rules are determined by the Commission to be consistent with the requirements of this section and not otherwise in violation of this chapter or the regulations issued pursuant to this chapter, and the Commission shall disapprove, after appropriate notice and opportunity for hearing, any such rule which the Commission determines at any time to be inconsistent with the requirements of this section or in violation of this chapter or the regulations issued pursuant to this chapter. If the Commission does not approve or institute disapproval proceedings with respect to any rule within one hundred and eighty days after receipt or within such longer period of time as the registered futures association may agree to, or if the Commission does not conclude a disapproval proceeding with respect to any rule within one year after receipt or within such longer period as the registered futures association may agree to, such rule may be made effective by the registered futures association until such time as the Commission disapproves such rule in accordance with this subsection.
(k) Abrogation of association rules; requests to associations by Commission to alter or supplement rules
(1) The Commission is authorized by order to abrogate any rule of a registered futures association, if after appropriate notice and opportunity for hearing, it appears to the Commission that such abrogation is necessary or appropriate to assure fair dealing by the members of such association, to assure a fair representation of its members in the administration of its affairs or effectuate the purposes of this section.
(2) The Commission may in writing request any registered futures association to adopt any specified alteration or supplement to its rules with respect to any of the matters hereinafter enumerated. If such association fails to adopt such alteration or supplement within a reasonable time, the Commission is authorized by order to alter or supplement the rules of such association in the manner theretofore requested, or with such modifications of such alteration or supplement as it deems necessary if, after appropriate notice and opportunity for hearing, it appears to the Commission that such alteration or supplement is necessary or appropriate in the public interest or to effectuate the purposes of this section, with respect to—
(A) the basis for, and procedure in connection with, the denial of membership or the barring from being associated with a member or the disciplining of members or persons associated with members, or the qualifications required for members or natural persons associated with members or any class thereof;
(B) the method for adoption of any change in or addition to the rules of the association;
(C) the method of choosing officers and directors.
(l) Suspension and revocation of registration; expulsion of members; removal of association officers or directors
The Commission is authorized, if such action appears to it to be necessary or appropriate in the public interest or to carry out the purposes of this section—
(1) after appropriate notice and opportunity for hearing, by order to suspend for a period not exceeding twelve months or to revoke the registration of a registered futures association, if the Commission finds that such association has violated any provisions of this chapter or any rule or regulation thereunder, or has failed to enforce compliance with its own rules, or has engaged in any other activity tending to defeat the purposes of this chapter;
(2) after appropriate notice and opportunity for hearing, by order to suspend for a period not exceeding twelve months or to expel from a registered futures association any member thereof, or to suspend for a period not exceeding twelve months or to bar any person from being associated with a member thereof, if the Commission finds that such member or person—
(A) has violated any provision of this chapter or any rule or regulation thereunder, or has effected any transaction for any other person who, he had reason to believe, was violating with respect to such transaction any provision of this chapter or any rule or regulation thereunder; or
(B) has willfully violated any provision of this chapter, or of any rule, regulation, or order thereunder, or has effected any transaction for any other person who, he had reason to believe, was willfully violating with respect to such transaction any provision of this chapter or rule, regulation, or order; and
(3) after appropriate notice and opportunity for hearing, by order to remove from office any officer or director of a registered futures association who, the Commission finds, has willfully failed to enforce the rules of the association, or has willfully abused his authority.
(m) Rules requiring membership in associations
Notwithstanding any other provision of law, the Commission may approve rules of futures associations that, directly or indirectly, require persons eligible for membership in such associations to become members of at least one such association, upon a determination by the Commission that such rules are necessary or appropriate to achieve the purposes and objectives of this chapter.
(n) Reports to Congress
The Commission shall include in its annual reports to Congress information concerning any futures associations registered pursuant to this section and the effectiveness of such associations in regulating the practices of the members.
(o) Delegation to futures associations of registrative functions; discretionary review by Commission; judicial appeal
(1) The Commission may require any futures association registered pursuant to this section to perform any portion of the registration functions under this chapter with respect to each member of the association other than a registered entity and with respect to each associated person of such member, in accordance with rules, notwithstanding any other provision of law, adopted by such futures association and submitted to the Commission pursuant to subsection (j), and subject to the provisions of this chapter applicable to registrations granted by the Commission.
(2) In performing any Commission registration function authorized by the Commission under section 12a(10) of this title, this section, or any other applicable provisions of this chapter, a futures association may issue orders (A) to refuse to register any person, (B) to register conditionally any person, (C) to suspend the registration of any person, (D) to place restrictions on the registration of any person, or (E) to revoke the registration of any person. If such an order is the final decision of the futures association, any person against whom the order has been issued may petition the Commission to review the decision. The Commission may on its own initiative or upon petition decline review or grant review and affirm, set aside, or modify such an order of the futures association; and the findings of the futures association as to the facts, if supported by the weight of the evidence, shall be conclusive. Unless the Commission grants review under this section of an order concerning registration issued by a futures association, the order of the futures association shall be considered to be an order issued by the Commission.
(3) Nothing in this section shall affect the Commission's authority to review the granting of a registration application by a registered futures association that is performing any Commission registration function authorized by the Commission under section 12a(10) of this title, this section, or any other applicable provision of this chapter.
(4) If a person against whom a futures association has issued a registration order under this subsection petitions the Commission to review that order and the Commission declines to take review, such person may file a petition for review with a United States court of appeals, in accordance with section 9 of this title.
(p) Establishment of rules for futures associations; approval by Commission
Notwithstanding any other provision of this section, each futures association registered under this section on January 11, 1983, shall adopt and submit for Commission approval not later than ninety days after such date, and each futures association that applies for registration after such date shall adopt and include with its application for registration, rules of the association that require the association to—
(1) establish training standards and proficiency testing for persons involved in the solicitation of transactions subject to the provisions of this chapter, supervisors of such persons, and all persons for which it has registration responsibilities, and a program to audit and enforce compliance with such standards;
(2) establish minimum capital, segregation, and other financial requirements applicable to its members for which such requirements are imposed by the Commission and implement a program to audit and enforce compliance with such requirements, except that such requirements may not be less stringent than those imposed on such firms by this chapter or by Commission regulation;
(3) establish minimum standards governing the sales practices of its members and persons associated therewith for transactions subject to the provisions of this chapter; and
(4) establish special supervisory guidelines to protect the public interest relating to the solicitation by telephone of new futures or options accounts and make such guidelines applicable to those members determined to require such guidelines in accordance with standards established by the Commission consistent with this chapter. Such guidelines may include a requirement that, with respect to a customer with no previous futures or commodity options trading experience, the member may not enter an order for the account of such customer for a period of three days following opening of the account and receipt of a signed acknowledgment by the customer of receipt of a risk disclosure statement.
(q) 7 Major disciplinary rule violations
(1) The Commission shall issue regulations requiring each registered futures association to establish and make available to the public a schedule of major violations of any rule within the disciplinary jurisdiction of such registered futures association.
(2) The regulations issued by the Commission pursuant to this subsection shall prohibit, for a period of time to be determined by the Commission, any member of a registered futures association who is found to have committed any major violation from service on the governing board of any registered futures association or registered entity, or on any disciplinary committee thereof.
(q) 7 Program for implementation of rules
Each futures association registered under this section shall develop a comprehensive program that fully implements the rules approved by the Commission under this section as soon as practicable but not later than September 30, 1985, in the case of any futures association registered on January 11, 1983, and not later than two and one-half years after the date of registration in the case of any other futures association registered under this section.
(r) Rules to avoid duplicative regulation of dual registrants
Consistent with this chapter, each futures association registered under this section shall issue such rules as are necessary to avoid duplicative or conflicting rules applicable to any futures commission merchant registered with the Commission pursuant to section 6f(a) of this title (except paragraph (2) thereof), that is also registered with the Securities and Exchange Commission pursuant to section 78o(b) of title 15 (except paragraph (11) thereof), with respect to the application of—
(1) rules of such futures association of the type specified in section 6d(e) of this title involving security futures products; and
(2) similar rules of national securities associations registered pursuant to section 78o–3(a) of title 15 involving security futures products.
(Sept. 21, 1922, ch. 369, §17, as added Pub. L. 93–463, title III, §301, Oct. 23, 1974, 88 Stat. 1406; amended Pub. L. 95–405, §22, Sept. 30, 1978, 92 Stat. 876; Pub. L. 97–444, title II, §§217(b), 233, Jan. 11, 1983, 96 Stat. 2307, 2320; Pub. L. 99–641, title I, §§107, 108, 110(6), (7), Nov. 10, 1986, 100 Stat. 3558, 3559, 3561; Pub. L. 102–546, title II, §§204(a), 206(b), 209(b)(8), 222(c), 228, title IV, §402(12), Oct. 28, 1992, 106 Stat. 3600, 3602, 3607, 3616, 3619, 3625; Pub. L. 106–554, §1(a)(5) [title I, §123(a)(24), title II, §251(g)], Dec. 21, 2000, 114 Stat. 2763, 2763A-410, 2763A-444; Pub. L. 110–234, title XIII, §13105(f), May 22, 2008, 122 Stat. 1434; Pub. L. 110–246, §4(a), title XIII, §13105(f), June 18, 2008, 122 Stat. 1664, 2196; Pub. L. 111–203, title VII, §749(g), July 21, 2010, 124 Stat. 1748.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2010—Subsec. (r)(1). Pub. L. 111–203 substituted "section 6d(e) of this title" for "section 6d(c) of this title".
2008—Subsec. (r)(1). Pub. L. 110–246, §13105(f), substituted "6d(c)" for "6d(3)".
2000—Subsecs. (b)(2), (3), (10), (o)(1), (q)(2). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(24)], substituted "registered entity" for "contract market" wherever appearing.
Subsec. (r). Pub. L. 106–554, §1(a)(5) [title II, §251(g)], added subsec. (r).
1992—Subsec. (a)(1), (2). Pub. L. 102–546, §402(12)(A), realigned margins.
Subsec. (b)(3). Pub. L. 102–546, §§206(b)(1)(A), (B), 209(b)(8)(A)(i), struck out "or" at end of subpar. (A), in subpar. (B) made technical amendment to reference to sections 9 and 15 of this title to reflect change in reference to corresponding section of original act and struck out "or" at end, and in subpar. (D) substituted a semicolon for period at end.
Subsec. (b)(4). Pub. L. 102–546, §§206(b)(1)(B), (C), 209(b)(8)(A)(ii), substituted a semicolon for period at end of subpars. (A) to (D), in subpar. (E) substituted "; and" for period at end, and in subpar. (F) made technical amendment to reference to sections 9 and 15 of this title to reflect change in reference to corresponding section of original act and substituted a semicolon for period at end.
Subsec. (b)(5) to (9). Pub. L. 102–546, §206(b)(1)(B), (C), substituted a semicolon for period at end of pars. (5) to (9) and subpars. (A), (B), and (D) of par. (9) and in par. (9)(C) substituted "; and" for period at end.
Subsec. (b)(10). Pub. L. 102–546, §§206(b)(1)(C), 222(c), substituted "(A)" for "(i)" and "voluntary, (B)" for "voluntary and (ii)", inserted ", and" and subpar. (C) after "association", and substituted "; and" for period at end.
Subsec. (b)(11) to (13). Pub. L. 102–546, §206(b)(1)(D), added pars. (11) to (13).
Subsec. (i)(4). Pub. L. 102–546, §228, which directed that "(other than a registered futures association)." be struck out, was executed by striking "(other than a registered futures association)" after "Any person" to reflect the probable intent of Congress.
Pub. L. 102–546, §209(b)(8)(B), made technical amendment to reference to sections 9 and 15 of this title to reflect change in reference to corresponding section of original act.
Subsec. (l)(2)(B). Pub. L. 102–546, §402(12)(B), made technical amendment to reference to this chapter appearing after "violated any provision of" to reflect change in reference to corresponding provision of original act and substituted "; and" for period at end.
Subsec. (o)(4). Pub. L. 102–546, §209(b)(8)(C), made technical amendment to reference to sections 9 and 15 of this title to reflect change in reference to corresponding section of original act.
Subsec. (p)(4). Pub. L. 102–546, §204(a), added par. (4).
Subsec. (q). Pub. L. 102–546, §206(b)(2), added subsec. (q) relating to major disciplinary rules violations.
1986—Subsec. (b)(2). Pub. L. 99–641, §110(6), substituted "within" for "with in" before "the meaning".
Subsec. (h). Pub. L. 99–641, §107, amended subsec. (h) generally. Prior to amendment, subsec. (h) read as follows: "If any registered futures association takes any disciplinary action against any member thereof or any person associated with such a member or denies admission to any person seeking membership therein, or bars any person from being associated with a member, such action shall be subject to review by the Commission, on its own motion, or upon application by any person aggrieved thereby filed within thirty days after such action has been taken or within such longer period as the Commission may determine. Application to the Commission for review, or the institution of review by the Commission on its own motion, shall operate as a stay of such action until an order is issued upon such review pursuant to subsection (i) of this section unless the Commission otherwise orders, after notice and opportunity for hearing on the question of a stay (which hearing may consist solely of affidavits and oral arguments)."
Subsec. (i). Pub. L. 99–641, §107, amended subsec. (i) generally. Prior to amendment, subsec. (i) read as follows:
"(1) In a proceeding to review disciplinary action taken by a registered futures association against a member thereof or a person associated with a member, if the Commission, after appropriate notice and opportunity for hearing, upon consideration of the record before the association and such other evidence as it may deem relevant—
"(A) finds that such member or person has engaged in such acts or practices, or has omitted such act, as the association has found him to have engaged in or omitted, and
"(B) determines that such acts or practices, or omission to act, are in violation of such rules of the association as have been designated in the determination of the association, the Commission shall by order dismiss the proceeding, unless it appears to the Commission that such action should be modified in accordance with paragraph (2) of this subsection. The Commission shall likewise determine whether the acts or practices prohibited, or the omission of any act required, by any such rule constitute conduct inconsistent with just and equitable principles of trade, and shall so declare. If it appears to the Commission that the evidence does not warrant the finding required in clause (A), or if the Commission determines that such acts or practices as are found to have been engaged in are not prohibited by the designated rule or rules of the association, or that such act as is found to have been omitted is not required by such designated rule or rules, the Commission shall by order set aside the action of the association.
"(2) If, after appropriate notice and opportunity for hearing, the Commission finds that any penalty imposed upon a member or person associated with a member is excessive or oppressive, having due regard to the public interest, the Commission shall by order cancel, reduce, or require the remission of such penalty.
"(3) In any proceeding to review the denial of membership in a registered futures association or the barring of any person from being associated with a member, if the Commission, after appropriate notice and hearing, and upon consideration of the record before the association and such other evidence as it may deem relevant, determines that the specific grounds on which such denial or bar is based exist in fact and are valid under this section, the Commission shall by order dismiss the proceeding; otherwise, the Commission shall by order set aside the action of the association and require it to admit the applicant to membership therein, or to permit such person to be associated with a member."
Subsec. (j). Pub. L. 99–641, §108, struck out sentence which read as follows: "The Commission shall approve such rules within thirty days of their receipt if Commission approval is requested under this subsection or within thirty days after the Commission determines to review for approval any other rules unless the Commission notifies the registered futures association of its inability to complete such approval or review within such period of time."
Subsec. (k)(1). Pub. L. 99–641, §110(7), substituted "section" for "title".
1983—Subsec. (b)(4)(E). Pub. L. 97–444, §233(1), inserted ", which may require the applicant to be fingerprinted and to submit, or cause to be submitted, such fingerprints to the Attorney General for identification and appropriate processing. Notwithstanding any other provision of law, such an association may receive from the Attorney General all the results of such identification and processing" after "adopt procedures for verification of qualifications of the applicant".
Subsec. (b)(10). Pub. L. 97–444, §217(b), required association rules to provide for "expeditious" procedure, redesignated cl. (iv) as (ii) and substituted " 'customer' as used in this paragraph shall not include another member of the association" for " 'customer' as used in this subsection shall not include a futures commission merchant or a floor broker", and struck out clauses "(ii) the procedure shall not be applicable to any claim in excess of $15,000, (iii) the procedure shall not result in any compulsory payment except as agreed upon between the parties,".
Subsec. (d). Pub. L. 97–444, §233(2), substituted "section 12a(1) of this title" for "section 12a(4) of this title".
Subsec. (h). Pub. L. 97–444, §233(3), substituted "subsection (i) of this section" for "subsection (k) of this section".
Subsec. (j). Pub. L. 97–444, §233(4), substituted "A registered futures association shall submit to the Commission any change in or addition to its rules and may make such rules effective ten days after receipt of such submission by the Commission unless, within the ten-day period, the registered futures association requests review and approval thereof by the Commission or the Commission notifies such registered futures association in writing of its determination to review such rules for approval. The Commission shall approve such rules within thirty days of their receipt if Commission approval is requested under this subsection or within thirty days after the Commission determines to review for approval any other rules unless the Commission notifies the registered futures association of its inability to complete such approval or review within such period of time. The Commission shall approve such rules if such rules are determined by the Commission to be consistent with the requirements of this section and not otherwise in violation of this chapter or the regulations issued pursuant to this chapter, and the Commission shall disapprove, after appropriate notice and opportunity for hearing, any such rule which the Commission determines at any time to be inconsistent with the requirements of this section or in violation of this chapter or the regulations issued pursuant to this chapter. If the Commission does not approve or institute disapproval proceedings with respect to any rule within one hundred and eighty days after receipt or within such longer period of time as the registered futures association may agree to, or if the Commission does not conclude a disapproval proceeding with respect to any rule within one year after receipt or within such longer period as the registered futures association may agree to, such rule may be made effective by the registered futures association until such time as the Commission disapproves such rule in accordance with this subsection" for "Any change in or addition to the rules of a registered futures association shall be submitted to the Commission for approval and shall take effect upon the thirtieth day after such approval by the Commission, or upon such earlier date as the Commission may determine, unless the Commission shall enter an order disapproving such change or addition; and the Commission shall enter such an order unless such change or addition appears to the Commission to be consistent with the requirements of this section and the provisions of this chapter".
Subsecs. (o) to (q). Pub. L. 97–444, §233(5), added subsecs. (o), (p), and (q).
1978—Subsec. (b)(3)(B). Pub. L. 95–405, §22(1), struck out "(7 U.S.C. 9)" after "sections 9 and 15 of this title".
Subsec. (b)(10). Pub. L. 95–405, §22(2), substituted "$15,000" for "$5,000".
Subsec. (l)(1), (2)(A). Pub. L. 95–405, §22(3), substituted "chapter" for "section" wherever appearing.
Subsecs. (m), (n). Pub. L. 95–405, §22(4), added subsec. (m) and redesignated former subsec. (m) as (n).
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–405 effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as a note under section 2 of this title.
Effective Date
For effective date of section, see section 418 of Pub. L. 93–463, set out as an Effective Date of 1974 Amendment note under section 2 of this title.
Implementation
Pub. L. 102–546, title II, §204(b), Oct. 28, 1992, 106 Stat. 3600, provided that: "The guidelines required under section 17(p)(4) of the Commodity Exchange Act [7 U.S.C. 21(p)(4)] (as added by subsection (a) of this section) shall be submitted by a futures association registered with the Commodity Futures Trading Commission on the date of enactment of this Act [Oct. 28, 1992] to the Commission for the approval of the Commission not later than one hundred and eighty days after the date of enactment of this Act."
Study on Computerized Futures Trading
Pub. L. 102–546, title II, §220(b), (c), Oct. 28, 1992, 106 Stat. 3614, required the Commodity Futures Trading Commission to conduct a study related to trading in futures and options subject to the jurisdiction of the Commission under the Commodity Exchange Act through computers or by other electronic means, and also required the Commission, not later than two years after Oct. 28, 1992, to submit to Congress a report containing the results of the study and any appropriate recommendations.
1 So in original. The semicolon probably should be a period.
2 So in original. The word "and" probably should not appear.
3 So in original. The period probably should be a semicolon.
4 So in original. No subpar. (B) has been enacted.
5 So in original. The period probably should be "; and".
6 So in original. Probably should not be capitalized.
7 Two subsecs. (q) have been enacted.
§22. Research and information programs; reports to Congress
(a) The Commission shall establish and maintain, as part of its ongoing operations, research and information programs to (1) determine the feasibility of trading by computer, and the expanded use of modern information system technology, electronic data processing, and modern communication systems by commodity exchanges, boards of trade, and by the Commission itself for purposes of improving, strengthening, facilitating, or regulating futures trading operations; (2) assist in the development of educational and other informational materials regarding futures trading for dissemination and use among producers, market users, and the general public; and (3) carry out the general purposes of this chapter.
(b) The Commission shall include in its annual reports to Congress plans and findings with respect to implementing this section.
(Sept. 21, 1922, ch. 369, §18, as added Pub. L. 93–463, title IV, §416, Oct. 23, 1974, 88 Stat. 1415.)
Statutory Notes and Related Subsidiaries
Effective Date
For effective date of section, see section 418 of Pub. L. 93–463, set out as an Effective Date of 1974 Amendment note under section 2 of this title.
§23. Standardized contracts for certain commodities
(a) Margin accounts or contracts and leverage accounts or contracts prohibited except as authorized
Except as authorized under subsection (b), no person shall offer to enter into, enter into, or confirm the execution of, any transaction for the delivery of any commodity under a standardized contract commonly known to the trade as a margin account, margin contract, leverage account, or leverage contract, or under any contract, account, arrangement, scheme, or device that the Commission determines serves the same function or functions as such a standardized contract, or is marketed or managed in substantially the same manner as such a standardized contract.
(b) Permission to enter into contracts for delivery of silver or gold bullion, bulk silver or gold coins, or platinum; rules and regulations
(1) Subject to paragraph (2), no person shall offer to enter into, enter into, or confirm the execution of, any transaction for the delivery of silver bullion, gold bullion, bulk silver coins, bulk gold coins, or platinum under a standardized contract described in subsection (a), contrary to the terms of any rule, regulation, or order that the Commission shall prescribe, which may include terms designed to ensure the financial solvency of the transaction or prevent manipulation or fraud. Such rule, regulation, or order may be made only after notice and opportunity for hearing. The Commission may set different terms and conditions for transactions involving different commodities.
(2) No person may engage in any activity described in paragraph (1) who is not permitted to engage in such activity, by the rules, regulations, and orders of the Commission in effect on November 10, 1986, until the Commission permits such person to engage in such activity in accordance with regulations issued in accordance with subsection (c)(2).
(c) Survey of persons interested in engaging in transactions of silver and gold, etc.; assistance of futures association; regulations
(1)(A) Not later than 2 years after November 10, 1986, the Commission shall—
(i) with the assistance of a futures association registered under this chapter, conduct a survey concerning the persons interested in engaging in the business of offering to enter into, entering into, or confirming the execution of, the transactions described in subsection (b)(1); and
(ii) transmit a report of the results of the survey to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate.
(B) Notwithstanding any other provision of law, for purposes of completing such report the Commission may direct, by rule, regulation, or order, a futures association registered under this chapter to render such assistance as the Commission shall specify.
(C) Such report shall include the findings and any recommendations of the Commission concerning—
(i) whether such transactions serve an economic purpose;
(ii) the most efficient manner, consistent with the public interest, to permit additional persons to engage in the business of offering to enter into, entering into, and confirming the execution of such transactions; and
(iii) the appropriate regulatory scheme to govern such transactions to ensure the financial solvency of such transactions and to prevent manipulation or fraud.
(2) The report shall also include Commission regulations governing such transactions. The regulations shall provide for permitting additional persons to engage in such transactions. The regulations shall become effective on the expiration of 90 calendar days on which either House of Congress is in session after the date of the transmittal of the report to Congress. The regulations—
(A) may authorize or require, notwithstanding any other provision of law, a futures association registered under this chapter to perform such responsibilities in connection with such transactions as the Commission may specify; and
(B) may require that permission for additional persons to engage in such business be given on a gradual basis, so as not to place an undue burden on the resources of the Commission.
(d) Savings provision
This section shall not affect any rights or obligations arising out of any transaction subject to this section, as in effect before November 10, 1986, that was entered into, or the execution of which was confirmed, before November 10, 1986.
(Sept. 21, 1922, ch. 369, §19, as added Pub. L. 95–405, §23, Sept. 30, 1978, 92 Stat. 876; amended Pub. L. 97–444, title II, §234, Jan. 11, 1983, 96 Stat. 2322; Pub. L. 99–641, title I, §109, Nov. 10, 1986, 100 Stat. 3560.)
Editorial Notes
Prior Provisions
Provisions similar to those appearing in subsec. (b) were formerly contained in section 15a of this title.
Amendments
1986—Subsec. (a). Pub. L. 99–641 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: "No person shall offer to enter into, enter into, or confirm the execution of, any transaction for the delivery of any commodity specifically set forth in section 2 of this title prior to October 23, 1974, under a standardized contract commonly known to the trade as a margin account, margin contract, leverage account, or leverage contract, or under any contract, account, arrangement, scheme, or device that the Commission determines serves the same function or functions as such a standardized contract, or is marketed or managed in substantially the same manner as such a standardized contract."
Subsec. (b). Pub. L. 99–641 amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: "No person shall offer to enter into, enter into, or confirm the execution of any transaction for the delivery of silver bullion, gold bullion, or bulk silver coins or bulk gold coins, under a standardized contract described in subsection (a) of this section, contrary to any rule, regulation, or order of the Commission designed to ensure the financial solvency of the transaction or prevent manipulation or fraud: Provided, That such rule, regulation, or order may be made only after notice and opportunity for hearing."
Subsec. (c). Pub. L. 99–641 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: "The Commission shall regulate any transactions under a standardized contract described in subsection (a) of this section involving commodities described in subsection (b) of this section or any other commodities (except those commodities described in subsection (a) of this section) under such terms and conditions as the Commission shall prescribe by rule, regulation, or order made only after notice and opportunity for a hearing. The Commission may set different terms and conditions for such transactions involving different commodities. Notwithstanding any other provision of this section, the Commission may prohibit any transaction for the delivery of any commodity under a standardized contract described in subsection (a) of this section that is not permitted by the rules, regulations and orders of the Commission in effect on December 9, 1982, if the Commission determines that any such transactions would be contrary to the public interest."
Subsec. (d). Pub. L. 99–641, in amending section generally, added subsec. (d).
1983—Subsec. (c). Pub. L. 97–444, §234(1), substituted "shall regulate" for "may prohibit or regulate" and authorized Commission prohibition of transactions for delivery of commodities under a standardized contract that was not permitted by the rules, regulations and orders of the Commission in effect on Dec. 9, 1982, where transactions are determined to be contrary to the public interest.
Subsec. (d). Pub. L. 97–444, §234(2), struck out subsec. (d) which provided for regulation of transactions in accordance with applicable provisions of this chapter where Commission determined the transactions under subsecs. (b) and (c) of this section were contracts for future delivery within the meaning of this chapter.
Statutory Notes and Related Subsidiaries
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–444 effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as a note under section 2 of this title.
Effective Date
Section effective Oct. 1, 1978, see section 28 of Pub. L. 95–405, set out as an Effective Date of 1978 Amendment note under section 2 of this title.
§24. Customer property with respect to commodity broker debtors; definitions
(a) Regulations respecting commodity broker debtors
Notwithstanding title 11, the Commission may provide, with respect to a commodity broker that is a debtor under chapter 7 of title 11, by rule or regulation—
(1) that certain cash, securities, other property, or commodity contracts are to be included in or excluded from customer property or member property;
(2) that certain cash, securities, other property, or commodity contracts are to be specifically identifiable to a particular customer in a specific capacity;
(3) the method by which the business of such commodity broker is to be conducted or liquidated after the date of the filing of the petition under such chapter, including the payment and allocation of margin with respect to commodity contracts not specifically identifiable to a particular customer pending their orderly liquidation;
(4) any persons to which customer property and commodity contracts may be transferred under section 766 of title 11; and
(5) how the net equity of a customer is to be determined.
(b) Definitions
As used in this section, the terms "commodity broker", "commodity contract", "customer", "customer property", "member property", "net equity", and "security" have the meanings assigned such terms for the purposes of subchapter IV of chapter 7 of title 11.
(c) Portfolio margining accounts
The Commission shall exercise its authority to ensure that securities held in a portfolio margining account carried as a futures account are customer property and the owners of those accounts are customers for the purposes of subchapter IV of chapter 7 of title 11.
(Sept. 21, 1922, ch. 369, §20, formerly §19, as added Pub. L. 95–598, title III, §302, Nov. 6, 1978, 92 Stat. 2673; renumbered and amended Pub. L. 97–222, §20, July 27, 1982, 96 Stat. 241; Pub. L. 111–203, title VII, §713(c), July 21, 2010, 124 Stat. 1647.)
Editorial Notes
Amendments
2010—Subsec. (c). Pub. L. 111–203 added subsec. (c).
1982—Subsec. (a)(3). Pub. L. 97–222, §20(b), inserted ", including the payment and allocation of margin with respect to commodity contracts not specifically identifiable to a particular customer pending their orderly liquidation".
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Effective Date
Section effective Nov. 6, 1978, see section 402(d) of Pub. L. 95–598, set out as a note preceding section 101 of Title 11, Bankruptcy.
§24a. Swap data repositories
(a) Registration requirement
(1) Requirement; authority of derivatives clearing organization
(A) In general
It shall be unlawful for any person, unless registered with the Commission, directly or indirectly to make use of the mails or any means or instrumentality of interstate commerce to perform the functions of a swap data repository.
(B) Registration of derivatives clearing organizations
A derivatives clearing organization may register as a swap data repository.
(2) Inspection and examination
Each registered swap data repository shall be subject to inspection and examination by any representative of the Commission.
(3) Compliance with core principles
(A) In general
To be registered, and maintain registration, as a swap data repository, the swap data repository shall comply with—
(i) the requirements and core principles described in this section; and
(ii) any requirement that the Commission may impose by rule or regulation pursuant to section 12a(5) of this title.
(B) Reasonable discretion of swap data repository
Unless otherwise determined by the Commission by rule or regulation, a swap data repository described in subparagraph (A) shall have reasonable discretion in establishing the manner in which the swap data repository complies with the core principles described in this section.
(b) Standard setting
(1) Data identification
(A) In general
In accordance with subparagraph (B), the Commission shall prescribe standards that specify the data elements for each swap that shall be collected and maintained by each registered swap data repository.
(B) Requirement
In carrying out subparagraph (A), the Commission shall prescribe consistent data element standards applicable to registered entities and reporting counterparties.
(2) Data collection and maintenance
The Commission shall prescribe data collection and data maintenance standards for swap data repositories.
(3) Comparability
The standards prescribed by the Commission under this subsection shall be comparable to the data standards imposed by the Commission on derivatives clearing organizations in connection with their clearing of swaps.
(c) Duties
A swap data repository shall—
(1) accept data prescribed by the Commission for each swap under subsection (b);
(2) confirm with both counterparties to the swap the accuracy of the data that was submitted;
(3) maintain the data described in paragraph (1) in such form, in such manner, and for such period as may be required by the Commission;
(4)(A) provide direct electronic access to the Commission (or any designee of the Commission, including another registered entity); and
(B) provide the information described in paragraph (1) in such form and at such frequency as the Commission may require to comply with the public reporting requirements contained in section 2(a)(13) of this title;
(5) at the direction of the Commission, establish automated systems for monitoring, screening, and analyzing swap data, including compliance and frequency of end user clearing exemption claims by individual and affiliated entities;
(6) maintain the privacy of any and all swap transaction information that the swap data repository receives from a swap dealer, counterparty, or any other registered entity; and
(7) on a confidential basis pursuant to section 12 of this title, upon request, and after notifying the Commission of the request, make available swap data obtained by the swap data repository, including individual counterparty trade and position data, to—
(A) each appropriate prudential regulator;
(B) the Financial Stability Oversight Council;
(C) the Securities and Exchange Commission;
(D) the Department of Justice; and
(E) any other person that the Commission determines to be appropriate, including—
(i) foreign financial supervisors (including foreign futures authorities);
(ii) foreign central banks;
(iii) foreign ministries; and
(iv) other foreign authorities; and
(8) establish and maintain emergency procedures, backup facilities, and a plan for disaster recovery that allows for the timely recovery and resumption of operations and the fulfillment of the responsibilities and obligations of the organization.
(d) Confidentiality agreement
Before the swap data repository may share information with any entity described in subsection (c)(7), the swap data repository shall receive a written agreement from each entity stating that the entity shall abide by the confidentiality requirements described in section 12 of this title relating to the information on swap transactions that is provided.
(e) Designation of chief compliance officer
(1) In general
Each swap data repository shall designate an individual to serve as a chief compliance officer.
(2) Duties
The chief compliance officer shall—
(A) report directly to the board or to the senior officer of the swap data repository;
(B) review the compliance of the swap data repository with respect to the requirements and core principles described in this section;
(C) in consultation with the board of the swap data repository, a body performing a function similar to the board of the swap data repository, or the senior officer of the swap data repository, resolve any conflicts of interest that may arise;
(D) be responsible for administering each policy and procedure that is required to be established pursuant to this section;
(E) ensure compliance with this chapter (including regulations) relating to agreements, contracts, or transactions, including each rule prescribed by the Commission under this section;
(F) establish procedures for the remediation of noncompliance issues identified by the chief compliance officer through any—
(i) compliance office review;
(ii) look-back;
(iii) internal or external audit finding;
(iv) self-reported error; or
(v) validated complaint; and
(G) establish and follow appropriate procedures for the handling, management response, remediation, retesting, and closing of noncompliance issues.
(3) Annual reports
(A) In general
In accordance with rules prescribed by the Commission, the chief compliance officer shall annually prepare and sign a report that contains a description of—
(i) the compliance of the swap data repository of the chief compliance officer with respect to this chapter (including regulations); and
(ii) each policy and procedure of the swap data repository of the chief compliance officer (including the code of ethics and conflict of interest policies of the swap data repository).
(B) Requirements
A compliance report under subparagraph (A) shall—
(i) accompany each appropriate financial report of the swap data repository that is required to be furnished to the Commission pursuant to this section; and
(ii) include a certification that, under penalty of law, the compliance report is accurate and complete.
(f) Core principles applicable to swap data repositories
(1) Antitrust considerations
Unless necessary or appropriate to achieve the purposes of this chapter, a swap data repository shall not—
(A) adopt any rule or take any action that results in any unreasonable restraint of trade; or
(B) impose any material anticompetitive burden on the trading, clearing, or reporting of transactions.
(2) Governance arrangements
Each swap data repository shall establish governance arrangements that are transparent—
(A) to fulfill public interest requirements; and
(B) to support the objectives of the Federal Government, owners, and participants.
(3) Conflicts of interest
Each swap data repository shall—
(A) establish and enforce rules to minimize conflicts of interest in the decision-making process of the swap data repository; and
(B) establish a process for resolving conflicts of interest described in subparagraph (A).
(4) Additional duties developed by Commission
(A) In general
The Commission may develop 1 or more additional duties applicable to swap data repositories.
(B) Consideration of evolving standards
In developing additional duties under subparagraph (A), the Commission may take into consideration any evolving standard of the United States or the international community.
(C) Additional duties for Commission designees
The Commission shall establish additional duties for any registrant described in section 1a(48) of this title in order to minimize conflicts of interest, protect data, ensure compliance, and guarantee the safety and security of the swap data repository.
(g) Required registration for swap data repositories
Any person that is required to be registered as a swap data repository under this section shall register with the Commission regardless of whether that person is also licensed as a bank or registered with the Securities and Exchange Commission as a swap data repository.
(h) Rules
The Commission shall adopt rules governing persons that are registered under this section.
(Sept. 21, 1922, ch. 369, §21, as added Pub. L. 111–203, title VII, §728, July 21, 2010, 124 Stat. 1697; amended Pub. L. 114–94, div. G, title LXXXVI, §86001(b), Dec. 4, 2015, 129 Stat. 1797.)
Editorial Notes
Prior Provisions
A prior section 21 of act Sept. 21, 1922, ch. 369, as added by Pub. L. 96–276, §7, June 17, 1980, 94 Stat. 542, related to silver markets activity and was set out as a note under section 4a of this title prior to repeal by Pub. L. 102–546, title IV, §402(13), Oct. 28, 1992, 106 Stat. 3625.
Amendments
2015—Subsec. (c)(7). Pub. L. 114–94, §86001(b)(1)(A), substituted "swap" for "all" in introductory provisions.
Subsec. (c)(7)(E)(iv). Pub. L. 114–94, §86001(b)(1)(B), added cl. (iv).
Subsec. (d). Pub. L. 114–94, §86001(b)(2), added subsec. (d) and struck out former subsec. (d) which related to confidentiality and indemnification agreement.
Statutory Notes and Related Subsidiaries
Effective Date of 2015 Amendment
Amendment by Pub. L. 114–94 effective as if enacted as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111–203, see section 86001(d) of Pub. L. 114–94, set out as a note under section 7a–1 of this title.
Effective Date
Section effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as an Effective Date of 2010 Amendment note under section 1a of this title.
§25. Private rights of action
(a) Actual damages; actionable transactions; exclusive remedy
(1) Any person (other than a registered entity or registered futures association) who violates this chapter or who willfully aids, abets, counsels, induces, or procures the commission of a violation of this chapter shall be liable for actual damages resulting from one or more of the transactions referred to in subparagraphs (A) through (D) of this paragraph and caused by such violation to any other person—
(A) who received trading advice from such person for a fee;
(B) who made through such person any contract of sale of any commodity for future delivery (or option on such contract or any commodity) or any swap; or who deposited with or paid to such person money, securities, or property (or incurred debt in lieu thereof) in connection with any order to make such contract or any swap;
(C) who purchased from or sold to such person or placed through such person an order for the purchase or sale of—
(i) an option subject to section 6c of this title (other than an option purchased or sold on a registered entity or other board of trade);
(ii) a contract subject to section 23 of this title; or 1
(iii) an interest or participation in a commodity pool; or
(iv) a swap; or
(D) who purchased or sold a contract referred to in subparagraph (B) hereof or swap if the violation constitutes—
(i) the use or employment of, or an attempt to use or employ, in connection with a swap, or a contract of sale of a commodity, in interstate commerce, or for future delivery on or subject to the rules of any registered entity, any manipulative device or contrivance in contravention of such rules and regulations as the Commission shall promulgate by not later than 1 year after July 21, 2010; or
(ii) a manipulation of the price of any such contract or swap or the price of the commodity underlying such contract or swap.
(2) Except as provided in subsection (b), the rights of action authorized by this subsection and by sections 7(d)(13), 7a–1(c)(2)(H), and 21(b)(10) of this title shall be the exclusive remedies under this chapter available to any person who sustains loss as a result of any alleged violation of this chapter. Nothing in this subsection shall limit or abridge the rights of the parties to agree in advance of a dispute upon any forum for resolving claims under this section, including arbitration.
(3) In any action arising from a violation in the execution of an order on the floor of a registered entity, the person referred to in paragraph (1) shall be liable for—
(A) actual damages proximately caused by such violation. If an award of actual damages is made against a floor broker in connection with the execution of a customer order, and the futures commission merchant which selected the floor broker for the execution of the customer order is held to be responsible under section 2(a)(1) of this title for the floor broker's violation, such futures commission merchant may be required to satisfy such award; and
(B) where the violation is willful and intentional, punitive or exemplary damages equal to no more than two times the amount of such actual damages. If an award of punitive or exemplary damages is made against a floor broker in connection with the execution of a customer order, and the futures commission merchant which selected the floor broker for the execution of the customer order is held to be responsible under section 2(a)(1) of this title for the floor broker's violation, such futures commission merchant may be required to satisfy such award if the floor broker fails to do so, except that such requirement shall apply to the futures commission merchant only if it willfully and intentionally selected the floor broker with the intent to assist or facilitate the floor broker's violation.
(4)
(A)
(B)
(i) to meet the definition of a swap under section 1a of this title; or
(ii) to be cleared in accordance with section 2(h)(1) of this title.
(5)
(A)
(B)
(6)
(b) Liabilities of organizations and individuals; bad faith requirement; exclusive remedy
(1)(A) A registered entity that fails to enforce any bylaw, rule, regulation, or resolution that it is required to enforce by section 7, 7a–1, 7a–2, 7b–3, or 24a of this title, (B) a licensed board of trade that fails to enforce any bylaw, rule, regulation, or resolution that it is required to enforce by the Commission, or (C) any registered entity that in enforcing any such bylaw, rule, regulation, or resolution violates this chapter or any Commission rule, regulation, or order, shall be liable for actual damages sustained by a person who engaged in any transaction on or subject to the rules of such registered entity to the extent of such person's actual losses that resulted from such transaction and were caused by such failure to enforce or enforcement of such bylaws, rules, regulations, or resolutions.
(2) A registered futures association that fails to enforce any bylaw or rule that is required under section 21 of this title or in enforcing any such bylaw or rule violates this chapter or any Commission rule, regulation, or order shall be liable for actual damages sustained by a person that engaged in any transaction specified in subsection (a) of this section to the extent of such person's actual losses that resulted from such transaction and were caused by such failure to enforce or enforcement of such bylaw or rule.
(3) Any individual who, in the capacity as an officer, director, governor, committee member, or employee of registered 2 entity or a registered futures association willfully aids, abets, counsels, induces, or procures any failure by any such entity to enforce (or any violation of the chapter in enforcing) any bylaw, rule, regulation, or resolution referred to in paragraph (1) or (2) of this subsection, shall be liable for actual damages sustained by a person who engaged in any transaction specified in subsection (a) of this section on, or subject to the rules of, such registered entity or, in the case of an officer, director, governor, committee member, or employee of a registered futures association, any transaction specified in subsection (a) of this section, in either case to the extent of such person's actual losses that resulted from such transaction and were caused by such failure or violation.
(4) A person seeking to enforce liability under this section must establish that the registered entity 3 registered futures association, officer, director, governor, committee member, or employee acted in bad faith in failing to take action or in taking such action as was taken, and that such failure or action caused the loss.
(5) The rights of action authorized by this subsection shall be the exclusive remedy under this chapter available to any person who sustains a loss as a result of (A) the alleged failure by a registered entity or registered futures association or by any officer, director, governor, committee member, or employee to enforce any bylaw, rule, regulation, or resolution referred to in paragraph (1) or (2) of this subsection, or (B) the taking of action in enforcing any bylaw, rule, regulation, or resolution referred to in this subsection that is alleged to have violated this chapter, or any Commission rule, regulation, or order.
(c) Jurisdiction; statute of limitations; venue; process
The United States district courts shall have exclusive jurisdiction of actions brought under this section. Any such action shall be brought not later than two years after the date the cause of action arises. Any action brought under subsection (a) of this section may be brought in any judicial district wherein the defendant is found, resides, or transacts business, or in the judicial district wherein any act or transaction constituting the violation occurs. Process in such action may be served in any judicial district of which the defendant is an inhabitant or wherever the defendant may be found.
(d) Dates of application to actions
The provisions of this section shall become effective with respect to causes of action accruing on or after the date of enactment of the Futures Trading Act of 1982 [January 11, 1983]: Provided, That the enactment of the Futures Trading Act of 1982 shall not affect any right of any parties which may exist with respect to causes of action accruing prior to such date.
(Sept. 21, 1922, ch. 369, §22, as added Pub. L. 97–444, title II, §235, Jan. 11, 1983, 96 Stat. 2322; amended Pub. L. 102–546, title II, §§211, 222(d), title IV, §402(14), Oct. 28, 1992, 106 Stat. 3607, 3616, 3625; Pub. L. 106–554, §1(a)(5) [title I, §§120, 123(a)(25)], Dec. 21, 2000, 114 Stat. 2763, 2763A-404, 2763A-410; Pub. L. 110–234, title XIII, §§13105(i), 13203(n), May 22, 2008, 122 Stat. 1435, 1441; Pub. L. 110–246, §4(a), title XIII, §§13105(i), 13203(n), June 18, 2008, 122 Stat. 1664, 2197, 2203; Pub. L. 111–203, title VII, §§738(c), 739, 749(h), 753(c), July 21, 2010, 124 Stat. 1728, 1729, 1748, 1754.)
Editorial Notes
References in Text
The Wall Street Transparency and Accountability Act of 2010, referred to in subsec. (a)(5), is title VII of Pub. L. 111–203, July 21, 2010, 124 Stat. 1641, which enacted chapter 109 (§8301 et seq.) of Title 15, Commerce and Trade, and enacted and amended numerous other sections and notes in the Code. For complete classification of this Act to the Code, see Short Title note set out under section 8301 of Title 15 and Tables.
The Futures Trading Act of 1982, referred to in subsec. (d), is Pub. L. 97–444, Jan. 11, 1983, 96 Stat. 2294, which is classified generally to this chapter. For complete classification of this Act to the Code, see Short Title of 1983 Amendment note set out under section 1 of this title and Tables.
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2010—Subsec. (a)(1)(B). Pub. L. 111–203, §749(h)(1)(B), which directed insertion of "or any swap" after "such contract", was executed by making the insertion after "such contract" the second time appearing, to reflect the probable intent of Congress.
Pub. L. 111–203, §749(h)(1)(A), inserted "or any swap" after "commodity)".
Subsec. (a)(1)(C)(iv). Pub. L. 111–203, §749(h)(2), added cl. (iv).
Subsec. (a)(1)(D). Pub. L. 111–203, §753(c), added subpar. (D) and struck out former subpar. (D) which read as follows: "who purchased or sold a contract referred to in subparagraph (B) hereof if the violation constitutes a manipulation of the price of any such contract or the price of the commodity underlying such contract."
Subsec. (a)(4), (5). Pub. L. 111–203, §739, added pars. (4) and (5) and struck out former par. (4). Prior to amendment, text of par. (4) read as follows: "No agreement, contract, or transaction between eligible contract participants or persons reasonably believed to be eligible contract participants, and no hybrid instrument sold to any investor, shall be void, voidable, or unenforceable, and no such party shall be entitled to rescind, or recover any payment made with respect to, such an agreement, contract, transaction, or instrument under this section or any other provision of Federal or State law, based solely on the failure of the agreement, contract, transaction, or instrument to comply with the terms or conditions of an exemption or exclusion from any provision of this chapter or regulations of the Commission."
Subsec. (a)(6). Pub. L. 111–203, §738(c), added par. (6).
Subsec. (b)(1)(A). Pub. L. 111–203, §749(h)(3), substituted "section 7, 7a–1, 7a–2, 7b–3, or 24a of this title" for "section 2(h)(7) of this title or sections 7 through 7a–2 of this title".
2008—Subsec. (a)(2). Pub. L. 110–246, §13105(i), substituted "7a–1(c)(2)(H)" for "7a–1(b)(1)(E)".
Subsec. (b)(1)(A). Pub. L. 110–246, §13203(n), inserted "section 2(h)(7) of this title or" before "sections 7 through 7a–2".
2000—Subsec. (a)(1). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(25)(A)(i)(I)], substituted "registered entity" for "contract market, clearing organization of a contract market, licensed board of trade," in introductory provisions.
Subsec. (a)(1)(C)(i). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(25)(A)(i)(II)], substituted "registered entity" for "contract market".
Subsec. (a)(2). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(25)(A)(ii)], substituted "sections 7(d)(13), 7a–1(b)(1)(E)," for "sections 7a(11),".
Subsec. (a)(3). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(25)(A)(iii)], substituted "registered entity" for "contract market" in introductory provisions.
Subsec. (a)(4). Pub. L. 106–554, §1(a)(5) [title I, §120], added par. (4).
Subsec. (b)(1). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(25)(B)(i)], substituted "registered entity that fails" for "contract market or clearing organization of a contract market that fails", "sections 7 through 7a–2 of this title" for "section 7a(8) and section 7a(9) of this title", "registered entity that in" for "contract market, clearing organization of a contract market, or licensed board of trade that in", and "registered entity to the" for "contract market or licensed board of trade to the".
Subsec. (b)(3). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(25)(B)(ii)], substituted "employee of registered entity" for "employee of a contract market, clearing organization, licensed board of trade," and "such registered entity" for "such contract market, licensed board of trade".
Subsec. (b)(4). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(25)(B)(iii)], substituted "registered entity" for "contract market, licensed board of trade, clearing organization,".
Subsec. (b)(5). Pub. L. 106–554, §1(a)(5) [title I, §123(a)(25)(B)(iv)], substituted "registered entity" for "contract market, licensed board of trade, clearing organization,".
1992—Subsec. (a)(1). Pub. L. 102–546, §402(14)(A), substituted "subparagraphs" for "clauses" in introductory provisions and "subparagraph" for "clause" in subpar. (D).
Subsec. (a)(2). Pub. L. 102–546, §402(14)(B), made technical amendment to reference to section 21(b)(10) of this title to correct reference to corresponding section of original act.
Subsec. (a)(3). Pub. L. 102–546, §222(d), added par. (3).
Subsec. (c). Pub. L. 102–546, §211, amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: "The United States district courts shall have exclusive jurisdiction of actions brought under this section. Any such action must be brought within two years after the date the cause of action accrued."
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by sections 738(c), 739, and 749(h) of Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Amendment by section 753(c) of Pub. L. 111–203 effective on the date on which the final rule promulgated by the Commodity Futures Trading Commission pursuant to Pub. L. 111–203 takes effect [see 76 F.R. 41398, effective Aug. 15, 2011], see section 753(d) of Pub. L. 111–203, set out as a note under section 9 of this title.
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, except as otherwise provided, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Amendment by section 13203(n) of Pub. L. 110–246 effective June 18, 2008, see section 13204(a) of Pub. L. 110–246, set out as a note under section 2 of this title.
Effective Date
Section effective Jan. 11, 1983, see section 239 of Pub. L. 97–444, set out as an Effective Date of 1983 Amendment note under section 2 of this title.
1 So in original. The word "or" probably should not appear.
2 So in original. Probably should be preceded by "a".
3 So in original. Probably should be followed by a comma.
§26. Commodity whistleblower incentives and protection
(a) Definitions
In this section:
(1) Covered judicial or administrative action
The term "covered judicial or administrative action" means any judicial or administrative action brought by the Commission under this chapter that results in monetary sanctions exceeding $1,000,000.
(2) Fund
The term "Fund" means the Commodity Futures Trading Commission Customer Protection Fund established under subsection (g).
(3) Monetary sanctions
The term "monetary sanctions", when used with respect to any judicial or administrative action means—
(A) any monies, including penalties, disgorgement, restitution, and interest ordered to be paid; and
(B) any monies deposited into a disgorgement fund or other fund pursuant to section 7246(b) of title 15, as a result of such action or any settlement of such action.
(4) Original information
The term "original information" means information that—
(A) is derived from the independent knowledge or analysis of a whistleblower;
(B) is not known to the Commission from any other source, unless the whistleblower is the original source of the information; and
(C) is not exclusively derived from an allegation made in a judicial or administrative hearing, in a governmental report, hearing, audit, or investigation, or from the news media, unless the whistleblower is a source of the information.
(5) Related action
The term "related action", when used with respect to any judicial or administrative action brought by the Commission under this chapter, means any judicial or administrative action brought by an entity described in subclauses (I) through (VI) of subsection (h)(2)(C) that is based upon the original information provided by a whistleblower pursuant to subsection (a) that led to the successful enforcement of the Commission action.
(6) Successful resolution
The term "successful resolution", when used with respect to any judicial or administrative action brought by the Commission under this chapter, includes any settlement of such action.
(7) Whistleblower
The term "whistleblower" means any individual, or 2 or more individuals acting jointly, who provides information relating to a violation of this chapter to the Commission, in a manner established by rule or regulation by the Commission.
(b) Awards
(1) In general
In any covered judicial or administrative action, or related action, the Commission, under regulations prescribed by the Commission and subject to subsection (c), shall pay an award or awards to 1 or more whistleblowers who voluntarily provided original information to the Commission that led to the successful enforcement of the covered judicial or administrative action, or related action, in an aggregate amount equal to—
(A) not less than 10 percent, in total, of what has been collected of the monetary sanctions imposed in the action or related actions; and
(B) not more than 30 percent, in total, of what has been collected of the monetary sanctions imposed in the action or related actions.
(2) Payment of awards
Any amount paid under paragraph (1) shall be paid from the Fund.
(c) Determination of amount of award; denial of award
(1) Determination of amount of award
(A) Discretion
The determination of the amount of an award made under subsection (b) shall be in the discretion of the Commission.
(B) Criteria
In determining the amount of an award made under subsection (b), the Commission—
(i) shall take into consideration—
(I) the significance of the information provided by the whistleblower to the success of the covered judicial or administrative action;
(II) the degree of assistance provided by the whistleblower and any legal representative of the whistleblower in a covered judicial or administrative action;
(III) the programmatic interest of the Commission in deterring violations of the 1 chapter (including regulations under the 1 chapter) by making awards to whistleblowers who provide information that leads to the successful enforcement of such laws; and
(IV) such additional relevant factors as the Commission may establish by rule or regulation; and
(ii) shall not take into consideration the balance of the Fund.
(2) Denial of award
No award under subsection (b) shall be made—
(A) to any whistleblower who is, or was at the time the whistleblower acquired the original information submitted to the Commission, a member, officer, or employee of—
(i) a appropriate regulatory agency;
(ii) the Department of Justice;
(iii) a registered entity;
(iv) a registered futures association;
(v) a self-regulatory organization as defined in section 78c(a) of title 15; or
(vi) a law enforcement organization;
(B) to any whistleblower who is convicted of a criminal violation related to the judicial or administrative action for which the whistleblower otherwise could receive an award under this section;
(C) to any whistleblower who submits information to the Commission that is based on the facts underlying the covered action submitted previously by another whistleblower;
(D) to any whistleblower who fails to submit information to the Commission in such form as the Commission may, by rule or regulation, require.
(d) Representation
(1) Permitted representation
Any whistleblower who makes a claim for an award under subsection (b) may be represented by counsel.
(2) Required representation
(A) In general
Any whistleblower who anonymously makes a claim for an award under subsection (b) shall be represented by counsel if the whistleblower submits the information upon which the claim is based.
(B) Disclosure of identity
Prior to the payment of an award, a whistleblower shall disclose the identity of the whistleblower and provide such other information as the Commission may require, directly or through counsel for the whistleblower.
(e) No contract necessary
No contract with the Commission is necessary for any whistleblower to receive an award under subsection (b), unless otherwise required by the Commission, by rule or regulation.
(f) Appeals
(1) In general
Any determination made under this section, including whether, to whom, or in what amount to make awards, shall be in the discretion of the Commission.
(2) Appeals
Any determination described in paragraph (1) may be appealed to the appropriate court of appeals of the United States not more than 30 days after the determination is issued by the Commission.
(3) Review
The court shall review the determination made by the Commission in accordance with section 7064 2 of title 5.
(g) Commodity Futures Trading Commission Customer Protection Fund
(1) Establishment
There is established in the Treasury of the United States a revolving fund to be known as the "Commodity Futures Trading Commission Customer Protection Fund".
(2) Use of Fund
The Fund shall be available to the Commission, without further appropriation or fiscal year limitation, for—
(A) the payment of awards to whistleblowers as provided in subsection (a); and
(B) the funding of customer education initiatives designed to help customers protect themselves against fraud or other violations of this chapter, or the rules and regulations thereunder.
(3) Deposits and credits
There shall be deposited into or credited to the Fund:
(A) Monetary sanctions
Any monetary sanctions collected by the Commission in any covered judicial or administrative action that is not otherwise distributed to victims of a violation of this chapter or the rules and regulations thereunder underlying such action, unless the balance of the Fund at the time the monetary judgment is collected exceeds $100,000,000.
(B) Additional amounts
If the amounts deposited into or credited to the Fund under subparagraph (A) are not sufficient to satisfy an award made under subsection (b), there shall be deposited into or credited to the Fund an amount equal to the unsatisfied portion of the award from any monetary sanction collected by the Commission in any judicial or administrative action brought by the Commission under this chapter that is based on information provided by a whistleblower.
(C) Investment income
All income from investments made under paragraph (4).
(4) Investments
(A) Amounts in Fund may be invested
The Commission may request the Secretary of the Treasury to invest the portion of the Fund that is not, in the Commission's judgment, required to meet the current needs of the Fund.
(B) Eligible investments
Investments shall be made by the Secretary of the Treasury in obligations of the United States or obligations that are guaranteed as to principal and interest by the United States, with maturities suitable to the needs of the Fund as determined by the Commission.
(C) Interest and proceeds credited
The interest on, and the proceeds from the sale or redemption of, any obligations held in the Fund shall be credited to, and form a part of, the Fund.
(5) Reports to Congress
Not later than October 30 of each year, the Commission shall transmit to the Committee on Agriculture, Nutrition, and Forestry of the Senate, and the Committee on Agriculture of the House of Representatives a report on—
(A) the Commission's whistleblower award program under this section, including a description of the number of awards granted and the types of cases in which awards were granted during the preceding fiscal year;
(B) customer education initiatives described in paragraph (2)(B) that were funded by the Fund during the preceding fiscal year;
(C) the balance of the Fund at the beginning of the preceding fiscal year;
(D) the amounts deposited into or credited to the Fund during the preceding fiscal year;
(E) the amount of earnings on investments of amounts in the Fund during the preceding fiscal year;
(F) the amount paid from the Fund during the preceding fiscal year to whistleblowers pursuant to subsection (b);
(G) the amount paid from the Fund during the preceding fiscal year for customer education initiatives described in paragraph (2)(B);
(H) the balance of the Fund at the end of the preceding fiscal year; and
(I) a complete set of audited financial statements, including a balance sheet, income statement, and cash flow analysis.
(h) Protection of whistleblowers
(1) Prohibition against retaliation
(A) In general
No employer may discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against, a whistleblower in the terms and conditions of employment because of any lawful act done by the whistleblower—
(i) in providing information to the Commission in accordance with subsection (b); or
(ii) in assisting in any investigation or judicial or administrative action of the Commission based upon or related to such information.
(B) Enforcement
(i) Cause of action
An individual who alleges discharge or other discrimination in violation of subparagraph (A) may bring an action under this subsection in the appropriate district court of the United States for the relief provided in subparagraph (C), unless the individual who is alleging discharge or other discrimination in violation of subparagraph (A) is an employee of the Federal Government, in which case the individual shall only bring an action under section 1221 of title 5.
(ii) Subpoenas
A subpoena requiring the attendance of a witness at a trial or hearing conducted under this subsection may be served at any place in the United States.
(iii) Statute of limitations
An action under this subsection may not be brought more than 2 years after the date on which the violation reported in subparagraph (A) is committed.
(C) Relief
Relief for an individual prevailing in an action brought under subparagraph (B) shall include—
(i) reinstatement with the same seniority status that the individual would have had, but for the discrimination;
(ii) the amount of back pay otherwise owed to the individual, with interest; and
(iii) compensation for any special damages sustained as a result of the discharge or discrimination, including litigation costs, expert witness fees, and reasonable attorney's fees.
(2) Confidentiality
(A) In general
Except as provided in subparagraphs (B) and (C), the Commission, and any officer or employee of the Commission, shall not disclose any information, including information provided by a whistleblower to the Commission, which could reasonably be expected to reveal the identity of a whistleblower, except in accordance with the provisions of section 552a of title 5, unless and until required to be disclosed to a defendant or respondent in connection with a public proceeding instituted by the Commission or any entity described in subparagraph (C). For purposes of section 552 of title 5, this paragraph shall be considered a statute described in subsection (b)(3)(B) of such section 552.
(B) Effect
Nothing in this paragraph is intended to limit the ability of the Attorney General to present such evidence to a grand jury or to share such evidence with potential witnesses or defendants in the course of an ongoing criminal investigation.
(C) Availability to government agencies
(i) In general
Without the loss of its status as confidential in the hands of the Commission, all information referred to in subparagraph (A) may, in the discretion of the Commission, when determined by the Commission to be necessary or appropriate to accomplish the purposes of this chapter and protect customers and in accordance with clause (ii), be made available to—
(I) the Department of Justice;
(II) an appropriate department or agency of the Federal Government, acting within the scope of its jurisdiction;
(III) a registered entity, registered futures association, or self-regulatory organization as defined in section 78c(a) of title 15;
(IV) a State attorney general in connection with any criminal investigation;
(V) an appropriate department or agency of any State, acting within the scope of its jurisdiction; and
(VI) a foreign futures authority.
(ii) Maintenance of information
Each of the entities, agencies, or persons described in clause (i) shall maintain information described in that clause as confidential, in accordance with the requirements in subparagraph (A).
(iii) Study on impact of FOIA exemption on Commodity Futures Trading Commission
(I) Study
The Inspector General of the Commission shall conduct a study—
(aa) on whether the exemption under section 552(b)(3) of title 5 (known as the Freedom of Information Act) established in paragraph (2)(A) aids whistleblowers in disclosing information to the Commission;
(bb) on what impact the exemption has had on the public's ability to access information about the Commission's regulation of commodity futures and option markets; and
(cc) to make any recommendations on whether the Commission should continue to use the exemption.
(II) Report
Not later than 30 months after July 21, 2010, the Inspector General shall—
(aa) submit a report on the findings of the study required under this clause to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives; and
(bb) make the report available to the public through publication of a report on the website of the Commission.
(3) Rights retained
Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any whistleblower under any Federal or State law, or under any collective bargaining agreement.
(i) Rulemaking authority
The Commission shall have the authority to issue such rules and regulations as may be necessary or appropriate to implement the provisions of this section consistent with the purposes of this section.
(j) Implementing rules
The Commission shall issue final rules or regulations implementing the provisions of this section not later than 270 days after July 21, 2010.
(k) Original information
Information submitted to the Commission by a whistleblower in accordance with rules or regulations implementing this section shall not lose its status as original information solely because the whistleblower submitted such information prior to the effective date of such rules or regulations, provided such information was submitted after July 21, 2010.
(l) Awards
A whistleblower may receive an award pursuant to this section regardless of whether any violation of a provision of this chapter, or a rule or regulation thereunder, underlying the judicial or administrative action upon which the award is based occurred prior to July 21, 2010.
(m) Provision of false information
A whistleblower who knowingly and willfully makes any false, fictitious, or fraudulent statement or representation, or who makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall not be entitled to an award under this section and shall be subject to prosecution under section 1001 of title 18.
(n) Nonenforceability of certain provisions waiving rights and remedies or requiring arbitration of disputes
(1) Waiver of rights and remedies
The rights and remedies provided for in this section may not be waived by any agreement, policy form, or condition of employment including by a predispute arbitration agreement.
(2) Predispute arbitration agreements
No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.
(Sept. 21, 1922, ch. 369, §23, as added Pub. L. 111–203, title VII, §748, July 21, 2010, 124 Stat. 1739.)
Editorial Notes
Prior Provisions
A prior section 26, act Sept. 21, 1922, ch. 369, §23, as added Jan. 11, 1983, Pub. L. 97–444, title II, §236, 96 Stat. 2324, provided for special studies to be conducted by Commission, Board of Governors of Federal Reserve System, and Securities and Exchange Commission, prior to repeal by Pub. L. 102–546, title IV, §402(15), Oct. 28, 1992, 106 Stat. 3625.
Statutory Notes and Related Subsidiaries
Effective Date
Section effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as an Effective Date of 2010 Amendment note under section 1a of this title.
1 So in original. Probably should be "this".
2 So in original. Probably should be "section 706".
§27. Definitions
(a) Bank
In sections 27 to 27f of this title, the term "bank" means—
(1) any depository institution (as defined in section 1813(c) of title 12);
(2) any foreign bank or branch or agency of a foreign bank (each as defined in section 3101 of title 12);
(3) any Federal or State credit union (as defined in section 1752 of title 12);
(4) any corporation organized under section 25A of the Federal Reserve Act [12 U.S.C. 611 et seq.];
(5) any corporation operating under section 25 of the Federal Reserve Act [12 U.S.C. 601 et seq.];
(6) any trust company; or
(7) any subsidiary of any entity described in paragraph 1 (1) through (6) of this subsection, if the subsidiary is regulated as if the subsidiary were part of the entity and is not a broker or dealer (as such terms are defined in section 78c of title 15) or a futures commission merchant (as defined in section 1a of this title).
(b) Identified banking product
In sections 27 to 27f of this title, the term "identified banking product" shall have the same meaning as in paragraphs (1) through (5) of section 206(a) of the Gramm-Leach-Bliley Act, except that in applying such section for purposes of sections 27 to 27f of this title—
(1) the term "bank" shall have the meaning given in subsection (a) of this section; and
(2) the term "qualified investor" means eligible contract participant (as defined in section 1a of this title, as in effect on December 21, 2000).
(c) Hybrid instrument
In sections 27 to 27f of this title, the term "hybrid instrument" means an identified banking product not excluded by section 27a of this title, offered by a bank, having one or more payments indexed to the value, level, or rate of, or providing for the delivery of, one or more commodities (as defined in section 1a of this title).
(Pub. L. 106–554, §1(a)(5) [title IV, §402], Dec. 21, 2000, 114 Stat. 2763, 2763A-457; Pub. L. 111–203, title VII, §§721(e)(9), 725(g)(1)(B), July 21, 2010, 124 Stat. 1672, 1694.)
Editorial Notes
References in Text
Section 25A of the Federal Reserve Act, referred to in subsec. (a)(4), is classified to subchapter II (§611 et seq.) of chapter 6 of Title 12, Banks and Banking. Section 25 of the Federal Reserve Act, referred to in subsec. (a)(5), is classified to subchapter I (§601 et seq.) of chapter 6 of Title 12.
Section 206 of the Gramm-Leach-Bliley Act, referred to in subsec. (b), is section 206 of Pub. L. 106–102 which is set out as a note under section 78c of Title 15, Commerce and Trade.
Codification
Section was enacted as part of the Legal Certainty for Bank Products Act of 2000, and also as part of the Commodity Futures Modernization Act of 2000, and not as part of the Commodity Exchange Act which comprises this chapter.
Amendments
2010—Subsec. (a)(7). Pub. L. 111–203, §721(e)(9)(A), substituted "section 1a" for "section 1a(20)".
Subsec. (b)(2). Pub. L. 111–203, §721(e)(9)(B), substituted "section 1a" for "section 1a(12)".
Subsec. (c). Pub. L. 111–203, §721(e)(9)(C), substituted "section 1a" for "section 1a(4)".
Subsec. (d). Pub. L. 111–203, §725(g)(1)(B), struck out subsec. (d) which defined covered swap agreement.
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
Short Title
For short title of sections 27 to 27f of this title as the "Legal Certainty for Bank Products Act of 2000", see section 1(a)(5) [title IV, §401] of Pub. L. 106–554, set out as a Short Title of 2000 Amendment note under section 1 of this title.
1 So in original. Probably should be "paragraphs".
§27a. Exclusion of identified banking product
(a) Exclusion
Except as provided in subsection (b) or (c)—
(1) the Commodity Exchange Act (7 U.S.C. 1 et seq.) shall not apply to, and the Commodity Futures Trading Commission shall not exercise regulatory authority under the Commodity Exchange Act (7 U.S.C. 1 et seq.) with respect to, an identified banking product; and
(2) the definitions of "security-based swap" in section 3(a)(68) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(68)] and "security-based swap agreement" in section 1a(47)(A)(v) of the Commodity Exchange Act [7 U.S.C. 1a(47)(A)(v)] and section 3(a)(78) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(78)] do not include any identified bank product.
(b) Exception
An appropriate Federal banking agency may except an identified banking product of a bank under its regulatory jurisdiction from the exclusion in subsection (a) if the agency determines, in consultation with the Commodity Futures Trading Commission and the Securities and Exchange Commission, that the product—
(1) would meet the definition of a "swap" under section 1a(47) of the Commodity Exchange Act (7 U.S.C. 1a[47]) or a "security-based swap" under that 1 section 3(a)(68) of the Securities Exchange Act of 1934; and
(2) has become known to the trade as a swap or security-based swap, or otherwise has been structured as an identified banking product for the purpose of evading the provisions of the Commodity Exchange Act (7 U.S.C. 1 et seq.), the Securities Act of 1933 (15 U.S.C. 77a et seq.), or the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.).
(c) Exception
The exclusions in subsection (a) shall not apply to an identified bank product that—
(1) is a product of a bank that is not under the regulatory jurisdiction of an appropriate Federal banking agency;
(2) meets the definition of swap in section 1a(47) of the Commodity Exchange Act or security-based swap in section 3(a)(68) of the Securities Exchange Act of 1934; and
(3) has become known to the trade as a swap or security-based swap, or otherwise has been structured as an identified banking product for the purpose of evading the provisions of the Commodity Exchange Act (7 U.S.C. 1 et seq.), the Securities Act of 1933 (15 U.S.C. 77a et seq.), or the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.).
(Pub. L. 106–554, §1(a)(5) [title IV, §403], Dec. 21, 2000, 114 Stat. 2763, 2763A-458; Pub. L. 111–203, title VII, §725(g)(2), July 21, 2010, 124 Stat. 1694.)
Editorial Notes
References in Text
The Commodity Exchange Act, referred to in subsecs. (a)(1), (b)(2), and (c)(3), is act Sept. 21, 1922, ch. 369, 42 Stat. 998, which is classified generally to this chapter. For complete classification of this Act to the Code, see section 1 of this title and Tables.
The Securities Act of 1933, referred to in subsecs. (b)(2) and (c)(3), is title I of act May 27, 1933, ch. 38, 48 Stat. 74, which is classified generally to subchapter I (§77a et seq.) of chapter 2A of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 77a of Title 15 and Tables.
The Securities Exchange Act of 1934, referred to in subsecs. (b)(2) and (c)(3), is act June 6, 1934, ch. 404, 48 Stat. 881, which is classified principally to chapter 2B (§78a et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 78a of Title 15 and Tables.
Codification
Section was enacted as part of the Legal Certainty for Bank Products Act of 2000, and also as part of the Commodity Futures Modernization Act of 2000, and not as part of the Commodity Exchange Act which comprises this chapter.
Amendments
2010—Pub. L. 111–203 amended section generally. Prior to amendment, text read as follows: "No provision of the Commodity Exchange Act shall apply to, and the Commodity Futures Trading Commission shall not exercise regulatory authority with respect to, an identified banking product if—
"(1) an appropriate banking agency certifies that the product has been commonly offered, entered into, or provided in the United States by any bank on or before December 5, 2000, under applicable banking law; and
"(2) the product was not prohibited by the Commodity Exchange Act and not regulated by the Commodity Futures Trading Commission as a contract of sale of a commodity for future delivery (or an option on such a contract) or an option on a commodity, on or before December 5, 2000."
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
§27b. Repealed. Pub. L. 111–203, title VII, §725(g)(1)(A), July 21, 2010, 124 Stat. 1694
Section, Pub. L. 106–554, §1(a)(5) [title IV, §404], Dec. 21, 2000, 114 Stat. 2763, 2763A-459, related to exclusion of certain identified banking products offered by banks after Dec. 5, 2000.
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as an Effective Date of 2010 Amendment note under section 1a of this title.
§27c. Exclusion of certain other identified banking products
(a) In general
No provision of the Commodity Exchange Act [7 U.S.C. 1 et seq.] shall apply to, and the Commodity Futures Trading Commission shall not exercise regulatory authority with respect to, a banking product if the product is a hybrid instrument that is predominantly a banking product under the predominance test set forth in subsection (b).
(b) Predominance test
A hybrid instrument shall be considered to be predominantly a banking product for purposes of this section if—
(1) the issuer of the hybrid instrument receives payment in full of the purchase price of the hybrid instrument substantially contemporaneously with delivery of the hybrid instrument;
(2) the purchaser or holder of the hybrid instrument is not required to make under the terms of the instrument, or any arrangement referred to in the instrument, any payment to the issuer in addition to the purchase price referred to in paragraph (1), whether as margin, settlement payment, or otherwise during the life of the hybrid instrument or at maturity;
(3) the issuer of the hybrid instrument is not subject by the terms of the instrument to mark-to-market margining requirements; and
(4) the hybrid instrument is not marketed as a contract of sale of a commodity for future delivery (or option on such a contract) subject to the Commodity Exchange Act [7 U.S.C. 1 et seq.].
(c) Mark-to-market margining requirement
For purposes of subsection (b)(3) of this title, mark-to-market margining requirements shall not include the obligation of an issuer of a secured debt instrument to increase the amount of collateral held in pledge for the benefit of the purchaser of the secured debt instrument to secure the repayment obligations of the issuer under the secured debt instrument.
(Pub. L. 106–554, §1(a)(5) [title IV, §405], Dec. 21, 2000, 114 Stat. 2763, 2763A-459.)
Editorial Notes
References in Text
The Commodity Exchange Act, referred to in subsecs. (a) and (b)(4), is act Sept. 21, 1922, ch. 369, 42 Stat. 998, which is classified generally to this chapter. For complete classification of this Act to the Code, see section 1 of this title and Tables.
Codification
Section was enacted as part of the Legal Certainty for Bank Products Act of 2000, and also as part of the Commodity Futures Modernization Act of 2000, and not as part of the Commodity Exchange Act which comprises this chapter.
§27d. Administration of the predominance test
(a) In general
No provision of the Commodity Exchange Act [7 U.S.C. 1 et seq.] shall apply to, and the Commodity Futures Trading Commission shall not regulate, a hybrid instrument, unless the Commission determines, by or under a rule issued in accordance with this section, that—
(1) the action is necessary and appropriate in the public interest;
(2) the action is consistent with the Commodity Exchange Act [7 U.S.C. 1 et seq.] and the purposes of the Commodity Exchange Act; and
(3) the hybrid instrument is not predominantly a banking product under the predominance test set forth in section 27c(b) of this title.
(b) Consultation
Before commencing a rulemaking or making a determination pursuant to a rule issued under sections 27 to 27f of this title, the Commodity Futures Trading Commission shall consult with and seek the concurrence of the Board of Governors of the Federal Reserve System concerning—
(1) the nature of the hybrid instrument; and
(2) the history, purpose, extent, and appropriateness of the regulation of the hybrid instrument under the Commodity Exchange Act [7 U.S.C. 1 et seq.] and under appropriate banking laws.
(c) Objection to Commission regulation
(1) Filing of petition for review
The Board of Governors of the Federal Reserve System may obtain review of any rule or determination referred to in subsection (a) in the United States Court of Appeals for the District of Columbia Circuit by filing in the court, not later than 60 days after the date of publication of the rule or determination, a written petition requesting that the rule or determination be set aside. Any proceeding to challenge any such rule or determination shall be expedited by the court.
(2) Transmittal of petition and record
A copy of a petition described in paragraph (1) shall be transmitted as soon as possible by the Clerk of the court to an officer or employee of the Commodity Futures Trading Commission designated for that purpose. Upon receipt of the petition, the Commission shall file with the court the rule or determination under review and any documents referred to therein, and any other relevant materials prescribed by the court.
(3) Exclusive jurisdiction
On the date of the filing of a petition under paragraph (1), the court shall have jurisdiction, which shall become exclusive on the filing of the materials set forth in paragraph (2), to affirm and enforce or to set aside the rule or determination at issue.
(4) Standard of review
The court shall determine to affirm and enforce or set aside a rule or determination of the Commodity Futures Trading Commission under this section, based on the determination of the court as to whether—
(A) the subject product is predominantly a banking product; and
(B) making the provision or provisions of the Commodity Exchange Act [7 U.S.C. 1 et seq.] at issue applicable to the subject instrument is appropriate in light of the history, purpose, and extent of regulation under such Act, sections 27 to 27f of this title, and under the appropriate banking laws, giving deference neither to the views of the Commodity Futures Trading Commission nor the Board of Governors of the Federal Reserve System.
(5) Judicial stay
The filing of a petition by the Board pursuant to paragraph (1) shall operate as a judicial stay, until the date on which the determination of the court is final (including any appeal of the determination).
(6) Other authority to challenge
Any aggrieved party may seek judicial review pursuant to section 6(c) of the Commodity Exchange Act [7 U.S.C. 9] of a determination or rulemaking by the Commodity Futures Trading Commission under this section.
(Pub. L. 106–554, §1(a)(5) [title IV, §406], Dec. 21, 2000, 114 Stat. 2763, 2763A-459.)
Editorial Notes
References in Text
The Commodity Exchange Act, referred to in subsecs. (a), (b)(2), and (c)(4)(B), is act Sept. 21, 1922, ch. 369, 42 Stat. 998, which is classified generally to this chapter. For complete classification of this Act to the Code, see section 1 of this title and Tables.
Codification
Section was enacted as part of the Legal Certainty for Bank Products Act of 2000, and also as part of the Commodity Futures Modernization Act of 2000, and not as part of the Commodity Exchange Act which comprises this chapter.
§27e. Repealed. Pub. L. 111–203, title VII, §725(g)(1)(A), July 21, 2010, 124 Stat. 1694
Section, Pub. L. 106–554, §1(a)(5) [title IV, §407], Dec. 21, 2000, 114 Stat. 2763, 2763A-461, related to exclusion of covered swap agreements.
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as an Effective Date of 2010 Amendment note under section 1a of this title.
§27f. Contract enforcement
(a) Hybrid instruments
No hybrid instrument shall be void, voidable, or unenforceable, and no party to a hybrid instrument shall be entitled to rescind, or recover any payment made with respect to, a hybrid instrument under any provision of Federal or State law, based solely on the failure of the hybrid instrument to satisfy the predominance test set forth in section 27c(b) of this title or to comply with the terms or conditions of an exemption or exclusion from any provision of the Commodity Exchange Act [7 U.S.C. 1 et seq.] or any regulation of the Commodity Futures Trading Commission.
(b) Preemption
Sections 27 to 27f of this title shall supersede and preempt the application of any State or local law that prohibits or regulates gaming or the operation of bucket shops (other than antifraud provisions of general applicability) in the case of a hybrid instrument that is predominantly a banking product.
(Pub. L. 106–554, §1(a)(5) [title IV, §408], Dec. 21, 2000, 114 Stat. 2763, 2763A-461; Pub. L. 111–203, title VII, §725(g)(1)(C), July 21, 2010, 124 Stat. 1694.)
Editorial Notes
References in Text
The Commodity Exchange Act, referred to in subsec. (a), is act Sept. 21, 1922, ch. 369, 42 Stat. 998, which is classified generally to this chapter. For complete classification of this Act to the Code, see section 1 of this title and Tables.
Codification
Section was enacted as part of the Legal Certainty for Bank Products Act of 2000, and also as part of the Commodity Futures Modernization Act of 2000, and not as part of the Commodity Exchange Act which comprises this chapter.
Amendments
2010—Subsec. (b). Pub. L. 111–203, §725(g)(1)(C)(ii), (iii), redesignated subsec. (c) as (b) and struck out former subsec. (b). Text of subsec. (b) read as follows: "No covered swap agreement shall be void, voidable, or unenforceable, and no party to a covered swap agreement shall be entitled to rescind, or recover any payment made with respect to, a covered swap agreement under any provision of Federal or State law, based solely on the failure of the covered swap agreement to comply with the terms or conditions of an exemption or exclusion from any provision of the Commodity Exchange Act or any regulation of the Commodity Futures Trading Commission."
Subsec. (c). Pub. L. 111–203, §725(g)(1)(C)(iii), redesignated subsec. (c) as (b).
Pub. L. 111–203, §725(g)(1)(C)(i), substituted "in the case of" for "in the case of—", struck out par. (1) designation before "a hybrid", substituted "product." for "product; or", and struck out par. (2) which read as follows: "a covered swap agreement."
Statutory Notes and Related Subsidiaries
Effective Date of 2010 Amendment
Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title.
CHAPTER 2—COTTON STANDARDS
§51. Short title
This chapter shall be known by the short title of "United States Cotton Standards Act."
(Mar. 4, 1923, ch. 288, §1, 42 Stat. 1517.)
Statutory Notes and Related Subsidiaries
Effective Date
Act Mar. 4, 1923, ch. 288, §14, 42 Stat. 1520, provided: "That this Act [enacting this chapter] shall become effective on and after August 1, 1923."
§51a. Extension of classification facilities to cotton growers
The Secretary of Agriculture is requested to extend to cotton growers facilities for the classification of cotton authorized in this chapter, with such supervision of licensed classifiers as he shall deem necessary under authority of the United States Cotton Futures Act.
(Mar. 4, 1933, ch. 284, §1, 47 Stat. 1621.)
Editorial Notes
References in Text
The United States Cotton Futures Act, referred to in text, is part A of act Aug. 11, 1916, ch. 313, 39 Stat. 476, which was repealed by section 4 of act Feb. 10, 1939, ch. 2, 53 Stat. 1. For complete classification of this Act to the Code prior to its repeal, see Tables.
Codification
This section was not enacted as part of the United States Cotton Standards Act which comprises this chapter.
§51a–1. Contracts with cooperatives furnishing classers; amount and type of payment
On and after July 5, 1952, the Secretary may contract with cooperatives furnishing classers and other facilities for classing cotton and may pay for such services an amount, some part of which may be in kind, not in excess of the value of the samples.
(July 5, 1952, ch. 574, title I, §101, 66 Stat. 349.)
Editorial Notes
Codification
Section was enacted as part of the Department of Agriculture Appropriation Act, 1953, and not as part of the United States Cotton Standards Act which comprises this chapter.
§51b. Licensing samplers; revocation and suspension of license
Further to carry out the purposes of this chapter the Secretary of Agriculture is authorized to issue to any qualified person, upon presentation of satisfactory evidence of competency, a license to sample cotton. Any such license may be suspended or revoked by the Secretary of Agriculture whenever he is satisfied that such licensee is incompetent or has knowingly or carelessly sampled cotton improperly, or has violated any provision of this chapter or the regulations thereunder so far as the same may relate to him, or has used his license, or allowed it to be used, for any improper purpose. The Secretary of Agriculture may prescribe by regulation the conditions under which licenses may be issued hereunder, and may require any licensed sampler to give bond for the faithful performance of his duties and for the protection of persons affected thereby and may prescribe the conditions under which cotton shall be sampled by licensed samplers for the purpose of classification by officers of the Department of Agriculture, or by licensed cotton classifiers.
(Mar. 4, 1933, ch. 284, §2, 47 Stat. 1621.)
Editorial Notes
Codification
This section was not enacted as part of the United States Cotton Standards Act which comprises this chapter.
§52. Use of nonofficial standards prohibited; sales by sample excepted
It shall be unlawful (a) in or in connection with any transaction or shipment in commerce made after August 1, 1923, or (b) in any publication of a price or quotation determined in or in connection with any transaction or shipment in commerce after August 1, 1923, or (c) in any classification for the purposes of or in connection with a transaction or shipment in commerce after August 1, 1923, for any person to indicate for any cotton a grade or other class which is of or within the official cotton standards of the United States then in effect under this chapter by a name, description, or designation, or any system of names, description, or designation not used in said standards: Provided, That nothing herein shall prevent a transaction otherwise lawful by actual sample or on the basis of a private type which is used in good faith and not in evasion of or substitution for said standards.
(Mar. 4, 1923, ch. 288, §2, 42 Stat. 1517.)
§53. Licensing classifiers; revocation and suspension of license
The Secretary of Agriculture may, upon presentation of satisfactory evidence of competency, issue to any person a license to grade or otherwise classify cotton and to certificate the grade or other class thereof in accordance with the official cotton standards of the United States. Any such license may be suspended or revoked by the Secretary of Agriculture whenever he is satisfied, after reasonable opportunity afforded to the licensee for a hearing, that such licensee is incompetent or has knowingly or carelessly classified cotton improperly, or has violated any provision of this chapter or the regulations thereunder so far as the same may relate to him, or has used his license or allowed it to be used for any improper purpose. Pending investigation the Secretary of Agriculture, whenever he deems necessary, may suspend a license temporarily without a hearing.
(Mar. 4, 1923, ch. 288, §3, 42 Stat. 1517.)
§54. Classification by Department of Agriculture; certification thereof; effect of certificate; regulations for classification
Any person who has custody of or a financial interest in any cotton may submit the same or samples thereof, drawn in accordance with the regulations of the Secretary of Agriculture, to such officer or officers of the Department of Agriculture, as may be designated for the purpose pursuant to the regulations of the Secretary of Agriculture for a determination of the true classification of such cotton or samples, including the comparison thereof, if requested, with types or other samples submitted for the purpose. The final certificate of the Department of Agriculture showing such determination shall be binding on officers of the United States and shall be accepted in the courts of the United States as prima facie evidence of the true classification or comparison of such cotton or samples when involved in any transaction or shipment in commerce. The Secretary of Agriculture shall fix rules and regulations for submitting samples of cotton for classification providing that all samples shall be numbered so that no one interested in the transaction involved shall be known by any classifier engaged in the classification of such cotton samples.
(Mar. 4, 1923, ch. 288, §4, 42 Stat. 1517.)
§55. Fees and charges for cotton classing and related services; criteria; disposition of moneys and samples
(a) The Secretary of Agriculture shall cause to be collected such fees and charges for licenses issued to classifiers of cotton under section 53 of this title, for determinations made under section 54 of this title, and for the establishment of standards and sale of copies of standards under sections 56, 57, and 57a of this title, as will cover, as nearly as practicable, and after taking into consideration net proceeds from any sale of samples, the costs incident to providing services and standards under such sections, including administrative and supervisory costs. The Secretary may provide by regulation conditions under which cotton samples submitted or used in the performance of services authorized by this chapter shall become the property of the United States and may be sold with the proceeds credited to the foregoing account: Provided, That such cotton samples shall not be subject to the provisions of chapters 1 to 11 of title 40 and division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41. Any fees or charges, late payment penalties, or proceeds from the sales of samples collected under this subsection, and any interest earned through the investment of such funds shall be credited to the current appropriation account that incurs the costs of the services provided under this chapter, and shall remain available without fiscal year limitation to pay the expenses of the Secretary incident to providing services and standards under this chapter and section 15b of this title. Such funds may be invested by the Secretary in insured or fully collateralized, interest-bearing accounts or, at the discretion of the Secretary, by the Secretary of the Treasury in United States Government debt instruments.
(b) The price established by the Secretary of Agriculture under the foregoing provisions of this section for practical forms representing the official cotton standards of the United States shall cover, as nearly as practicable, the estimated actual cost to the Department of Agriculture for developing and preparing such practical forms.
(Mar. 4, 1923, ch. 288, §5, 42 Stat. 1518; Pub. L. 97–35, title I, §156(a), Aug. 13, 1981, 95 Stat. 373; Pub. L. 100–518, §4, Oct. 24, 1988, 102 Stat. 2587.)
Editorial Notes
Codification
In subsec. (a), "chapters 1 to 11 of title 40 and division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41" substituted for "the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 471 et seq.)" on authority of Pub. L. 107–217, §5(c), Aug. 21, 2002, 116 Stat. 1303, which Act enacted Title 40, Public Buildings, Property, and Works, and Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
Amendments
1988—Subsec. (a). Pub. L. 100–518 included late payment penalties, proceeds, and interest within amounts to be credited to current appropriation account and remain available until expended, and authorized investment of such funds in certain interest-bearing accounts or debt instruments.
1981—Pub. L. 97–35 designated existing provisions as subsec. (a), substituted provisions requiring Secretary to cause to be collected fees and charges, for provisions authorizing Secretary to cause to be collected charges, and added subsec. (b).
Statutory Notes and Related Subsidiaries
Effective Date of 1981 Amendment
Amendment by Pub. L. 97–35 effective Oct. 1, 1981, see section 156(e) of Pub. L. 97–35, set out as an Effective Date note under section 61a of this title.
Appropriation Account
Effective July 1, 1935, the appropriation account for expenses provided for in this chapter was abolished by act June 26, 1934, ch. 756, §5, 48 Stat. 1228.
§56. Establishment of cotton standards; furnishing copies of established standards sold
The Secretary of Agriculture is authorized to establish from time to time standards for the classification of cotton by which its quality or value may be judged or determined for commercial purposes which shall be known as the official cotton standards of the United States. Any such standard or change or replacement thereof shall become effective only on and after a date specified in the order of the Secretary of Agriculture establishing the same, which date shall be not less than one year after the date of such order: Provided, That the official cotton standards established, effective August 1, 1923, under the United States Cotton Futures Act shall be at the same time the official cotton standards for the purpose of this chapter unless and until changed or replaced under this chapter. Whenever any standard or change or replacement thereof shall become effective under this chapter, it shall also, when so specified in the order of the Secretary of Agriculture, become effective for the purposes of the United States Cotton Futures Act and supersede any inconsistent standard established under said Act. Whenever the official cotton standards of the United States established under this chapter shall be represented by practical forms the Department of Agriculture shall furnish copies thereof, upon request, to any person, and the cost thereof, as determined by the Secretary of Agriculture, shall be paid by the person making the request. The Secretary of Agriculture may cause such copies to be certified under the seal of the Department of Agriculture and may attach such conditions to the purchase and use thereof, including provision for the inspection, condemnation, and exchange thereof by duly authorized representatives of the Department of Agriculture as he may find to be necessary to the proper application of the official cotton standards of the United States.
(Mar. 4, 1923, ch. 288, §6(a), formerly §6, 42 Stat. 1518; renumbered §6(a), Sept. 21, 1944, ch. 412, §401(b), 58 Stat. 738.)
Editorial Notes
References in Text
The United States Cotton Futures Act, referred to in text, is part A of act Aug. 11, 1916, ch. 313, 39 Stat. 476, which was repealed by section 4 of act Feb. 10, 1939, ch. 2, 53 Stat. 1. For complete classification of this Act to the Code prior to its repeal, see Tables.
Codification
Section is composed of the first five sentences of subsec. (a) of section 6 of act Mar. 4, 1923, as renumbered by section 401(b), of act Sept. 21, 1944. Last sentence of subsec. (a) of section 6 is classified to section 57 of this title. Subsec. (b) of section 6 is classified to section 57a of this title.
§57. Disposition of proceeds of sale of cotton and of copies of standards
Any moneys received from or in connection with the sale of cotton purchased for the preparation of the copies mentioned in section 56 of this title and condemned as unsuitable for such use or with the sale of such copies may be expended for the purchase of other cotton for such use.
(Mar. 4, 1923, ch. 288, §6(a), formerly §6, 42 Stat. 1518; renumbered §6(a), Sept. 21, 1944, ch. 412, §401(b), 58 Stat. 738.)
Editorial Notes
Codification
Section is composed of the last sentence of subsec. (a) of section 6 of act Mar. 4, 1923, as renumbered by section 401(b) of act Sept. 21, 1944. First five sentences of subsec. (a) of section 6 is classified to section 56 of this title. Subsec. (b) of section 6 is classified to section 57a of this title.
§57a. Agreements with cotton associations, etc., in foreign countries to establish cotton standards
The Secretary of Agriculture is authorized to effectuate agreements with cotton associations, cotton exchanges, and other cotton organizations in foreign countries, for (1) the adoption, use, and observance of universal standards of cotton classification, (2) the arbitration or settlement of disputes with respect thereto, and (3) the preparation, distribution, inspection, and protection of the practical forms or copies thereof under such agreements.
(Mar. 4, 1923, ch. 288, §6(b), as added Sept. 21, 1944, ch. 412, title IV, §401(b), 58 Stat. 738.)
Editorial Notes
Codification
Section was enacted as subsec. (b) of section 6 of act Mar. 4, 1923, by act Sept. 21, 1944, §401(b). Subsec. (a) of section 6 is classified to sections 56 and 57 of this title.
§58. General inspection and sampling of cotton
In order to carry out the provisions of this chapter, the Secretary of Agriculture is authorized to cause the inspection, including the sampling, of any cotton involved in any transaction or shipment in commerce, wherever such cotton may be found, or of any cotton with respect to which a determination of the true classification is requested under section 54 of this title.
(Mar. 4, 1923, ch. 288, §7, 42 Stat. 1518.)
§59. Offenses in relation to cotton standards
It shall be unlawful for any person (a) with intent to deceive or defraud, to make, receive, use, or have in his possession any simulate or counterfeit practical form or copy of any standard or part thereof established under this chapter; or (b) without the written authority of the Secretary of Agriculture, to make, alter, tamper with, or in any respect change any practical form or copy of any standard established under this chapter; or (c) to display or use any such practical form or copy after the Secretary of Agriculture shall have caused it to be condemned.
(Mar. 4, 1923, ch. 288, §8, 42 Stat. 1519.)
§60. Penalties for violations
(a) Any person who shall knowingly violate any provision of sections 52 or 59 of this title, or (b) any person licensed under this chapter who, for the purposes of or in connection with any transaction or shipment in commerce, shall knowingly classify cotton improperly, or shall knowingly falsify or forge any certificate of classification, or shall accept money or other consideration, either directly or indirectly, for any neglect or improper performance of duty as such licensee, or (c) any person who shall knowingly influence improperly or attempt to influence improperly any person licensed under this chapter in the performance of his duties as such licensee relating to any transaction or shipment in commerce, or (d) any person who shall forcibly assault, resist, impede, or interfere with or influence improperly or attempt to influence improperly any person employed under this chapter in the performance of his duties, shall, upon conviction thereof, be deemed guilty of a misdemeanor and shall be fined not exceeding $1,000, or imprisoned not exceeding six months, or both, in the discretion of the court.
(Mar. 4, 1923, ch. 288, §9, 42 Stat. 1519.)
§61. General regulations, investigations, tests, etc., by Secretary
For the purposes of this chapter the Secretary of Agriculture shall cause to be promulgated such regulations, may cause such investigations, tests, demonstrations, and publications to be made, including the investigation and determination of some practical method whereby repeated and unnecessary sampling and classification of cotton may be avoided, and may cooperate with any department or agency of the Government, any State, Territory, District, or possession, or department, agency, or political subdivision thereof, or any person, as he shall find to be necessary.
(Mar. 4, 1923, ch. 288, §10, 42 Stat. 1519.)
§61a. Annual review meetings with cotton industry representatives; purposes, etc.
The Secretary of Agriculture shall hold annual meetings with representatives of the cotton industry to review (1) activities and operations under the Cotton Standards Act [7 U.S.C. 51 et seq.], and the Cotton Statistics and Estimates Act [7 U.S.C. 471 et seq.], (2) activities and operations relating to cotton under the United States Warehouse Act [7 U.S.C. 241 et seq.], and (3) the effect of such activities and operations on prices received by producers and sales to domestic and foreign users, for the purpose of improving procedures for financing and administering such activities and operations for the benefit of the industry and the Government. Notwithstanding any other provision of law, the Secretary shall take such action as may be necessary to insure that the universal cotton standards system and the licensing and inspection procedures for cotton warehouses are preserved and that the Government cotton classification system continues to operate so that the United States cotton crop is provided an official quality description.
(Pub. L. 97–35, title I, §156(d), Aug. 13, 1981, 95 Stat. 374.)
Editorial Notes
References in Text
The Cotton Standards Act, referred to in text, probably meaning the United States Cotton Standards Act, is act Mar. 4, 1923, ch. 288, 42 Stat. 1517, which is classified generally to this chapter. For complete classification of this Act to the Code, see section 51 of this title and Tables.
The Cotton Statistics and Estimates Act, referred to in text, is act Mar. 3, 1927, ch. 337, 44 Stat. 1372, which is classified generally to chapter 19 (§471 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 471 of this title and Tables.
The United States Warehouse Act, referred to in text, is part C of act Aug. 11, 1916, ch. 313, 39 Stat. 486, which is classified generally to chapter 10 (§241 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 241 of this title and Tables.
Codification
Section was enacted as part of the Omnibus Budget Reconciliation Act of 1981, and not as part of the United States Cotton Standards Act which comprises this chapter.
Statutory Notes and Related Subsidiaries
Effective Date
Pub. L. 97–35, title I, §156(e), Aug. 13, 1981, 95 Stat. 374, provided that: "The provisions of this section [enacting this section, amending sections 15b, 55, and 473a of this title, and enacting provision set out as a note under section 473a of this title] shall become effective October 1, 1981."
§62. Definitions
Wherever used in this chapter, (a) the word "person" imports the plural or the singular, as the case demands, and includes an individual, a partnership, a corporation, or two or more persons having a joint or common interest; (b) the word "commerce" means commerce between any State or the District of Columbia and any place outside thereof, or between points within the same State or the District of Columbia but through any place outside thereof, or within the District of Columbia; and (c) the word "cotton" means cotton of any variety produced within the continental United States, including linters.
(Mar. 4, 1923, ch. 288, §11, 42 Stat. 1519.)
Editorial Notes
Codification
Section is composed of the first sentence of section 11 of act Mar. 4, 1923. The remainder of section 11 is contained in section 63 of this title.
§63. Liability of principal for act of agent
When construing and enforcing the provisions of this chapter, the act, omission, or failure of any agent, officer, or other person acting for or employed by any person, within the scope of his employment or office, shall in every case be deemed also the act, omission, or failure of such person as well as that of such agent, officer, or other person.
(Mar. 4, 1923, ch. 288, §11, 42 Stat. 1519.)
Editorial Notes
Codification
Section is composed of the second sentence of section 11 of act Mar. 4, 1923. The first sentence of section 11 is contained in section 62 of this title.
§64. Appropriation for expenses; appointment by Secretary of officers and agents; compensation
There are authorized to be appropriated out of any moneys in the Treasury not otherwise appropriated, such sums as may be necessary for carrying out the provisions of this chapter; and the Secretary of Agriculture is authorized, within the limits of such appropriations, to appoint, remove, and fix the compensations of such officers and employees, not in conflict with existing law, and make such expenditures for rent outside the District of Columbia, printing, telegrams, telephones, law books, books of reference, periodicals, furniture, stationery, office equipment, travel, and other supplies and expenses as shall be necessary to the administration of this chapter in the District of Columbia and elsewhere.
(Mar. 4, 1923, ch. 288, §12, 42 Stat. 1519.)
§65. Separability
If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the chapter and the application of such provision to other persons and circumstances shall not be affected thereby.
(Mar. 4, 1923, ch. 288, §13, 42 Stat. 1520.)
CHAPTER 3—GRAIN STANDARDS
§71. Short title
This chapter may be cited as the "United States Grain Standards Act".
(Aug. 11, 1916, ch. 313, pt. B, §1, 39 Stat. 482; Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 761.)
Editorial Notes
Codification
This chapter constitutes part B of "An act making appropriations for the Department of Agriculture for the fiscal year ending June 30, 1917, and for other purposes," approved Aug. 11, 1916. Part A of act of Aug. 11, 1916, containing the "United States Cotton Futures Act," was repealed by section 4 of act Feb. 10, 1939, ch. 2, 53 Stat. 1. Part C of that act contained the "United States Warehouse Act," and is incorporated, as amended, as section 241 et seq. of this title.
Section is comprised of part of section 1 of part B of act Aug. 11, 1916. Other provisions contained in section 1 were classified to former sections 72 and 73 of this title.
Amendments
1968—Pub. L. 90–487 substituted "may be cited as" for "shall be known by the short title of".
Statutory Notes and Related Subsidiaries
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–487 effective 180 days after Aug. 15, 1968, see section 2 of Pub. L. 90–487, set out as a note under section 78 of this title.
Short Title of 2020 Amendment
Pub. L. 116–216, §1, Dec. 11, 2020, 134 Stat. 1048, provided that: "This Act [amending sections 76, 79, 79a, 79d, 87f–2, 87h, and 87j of this title] may be cited as the 'United States Grain Standards Reauthorization Act of 2020'."
Short Title of 2015 Amendment
Pub. L. 114–54, §1(a), Sept. 30, 2015, 129 Stat. 513, provided that: "This Act [amending sections 77, 79, 79a, 79d, 84, 87h, 87j, 1635i, 1635j, and 1636i of this title and sections 583j–2, 583j–3, 583j–5, and 583j–8 of Title 16, Conservation, enacting provisions set out as a note under section 1635m of this title, and amending provisions set out as a note under section 1635 of this title] may be cited as the 'Agriculture Reauthorizations Act of 2015'."
Short Title of 2000 Amendment
Pub. L. 106–472, §1(a), Nov. 9, 2000, 114 Stat. 2058, provided that: "This Act [enacting sections 228d, 241 to 256, 918a, and 1726b of this title and section 1012 of Title 16, Conservation, amending sections 15b, 77, 79, 79a, 79b, 79d, 84, 87b, 87h, 87j, 229, 1622, 1736a, 1926, 2009d, 5101, 5102, and 5106 of this title and sections 1766 and 1786 of Title 42, The Public Health and Welfare, repealing section 87e-1 of this title, enacting provisions set out as notes under sections 79, 181, 241, and 1314e of this title and section 1786 of Title 42, amending provisions set out as notes under sections 74, 612c, and 1421 of this title, and repealing provisions set out as notes under sections 75a, 76, and 79 of this title] may be cited as the 'Grain Standards and Warehouse Improvement Act of 2000'."
Short Title of 1993 Amendment
Pub. L. 103–156, §1(a), Nov. 24, 1993, 107 Stat. 1525, provided that: "This Act [amending sections 75 to 77, 79 to 79b, 79d, 84 to 87e, 87f, 87f–1, 87h, 87j, and 87k of this title, enacting provisions set out as a note under section 75 of this title, and repealing provisions set out as a note under section 79 of this title] may be cited as the 'United States Grain Standards Act Amendments of 1993'."
Short Title of 1990 Amendment
Pub. L. 101–624, title XX, §2001, Nov. 28, 1990, 104 Stat. 3928, provided that: "This title [enacting sections 75b, 87k, 1427–1, 1593a, and 1622a of this title, amending sections 74, 76, 77, 87b, 1423, and 1445e of this title, and enacting provisions set out as a note under section 76 of this title] may be cited as the 'Grain Quality Incentives Act of 1990'."
Short Title of 1988 Amendment
Pub. L. 100–518, §1, Oct. 24, 1988, 102 Stat. 2584, provided that: "This Act [enacting sections 79d and 87j of this title, amending sections 55, 79, 79a, and 87h of this title, and enacting provisions set out as notes under sections 79 and 1421 of this title] may be cited as the 'United States Grain Standards Act Amendments of 1988'."
Short Title of 1986 Amendment
Pub. L. 99–641, title III, §301, Nov. 10, 1986, 100 Stat. 3564, provided that: "This title [amending sections 74 and 87b of this title and enacting provisions set out as notes under sections 76 and 87b of this title] may be cited as the 'Grain Quality Improvement Act of 1986'."
Short Title of 1976 Amendment
Pub. L. 94–582, §1, Oct. 21, 1976, 90 Stat. 2867, provided: "That this Act [enacting sections 75a, 79a, 79b, 87e–1, 87f–1, and 87f–2 of this title, amending sections 74, 75, 76, 77, 78, 79, 84, 85, 86, 87, 87a, 87b, 87c, 87e, 87f, 87g, and 87h of this title, section 5316 of Title 5, Government Organization and Employees, and section 1114 of Title 18, Crimes and Criminal Procedure, and enacting provisions set out as notes under sections 74, 75a, 76, and 79 of this title] may be cited as the 'United States Grain Standards Act of 1976'."
§§72, 73. Omitted
Editorial Notes
Codification
Sections were omitted in the general reorganization of this chapter by Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 761.
Section 72, act Aug. 11, 1916, ch. 313, pt. B, §1 (part), 39 Stat. 482, defined the words "person" and "in interstate or foreign commerce". See section 75 of this title.
Section 73, act Aug. 11, 1916, ch. 313, pt. B, §1 (part), 39 Stat. 482, made associations, partnerships, and corporations liable for the acts of their agents within the scope of their employment or office. See section 87d of this title.
§74. Congressional findings and declaration of policy
(a) Grain is an essential source of the world's total supply of human food and animal feed and is merchandised in interstate and foreign commerce. It is declared to be the policy of the Congress, for the promotion and protection of such commerce in the interests of producers, merchandisers, warehousemen, processors, and consumers of grain, and the general welfare of the people of the United States, to provide for the establishment of official United States standards for grain, to promote the uniform application thereof by official inspection personnel, to provide for an official inspection system for grain, and to regulate the weighing and the certification of the weight of grain shipped in interstate or foreign commerce in the manner hereinafter provided; with the objectives that grain may be marketed in an orderly and timely manner and that trading in grain may be facilitated. It is hereby found that all grain and other articles and transactions in grain regulated under this chapter are either in interstate or foreign commerce or substantially affect such commerce and that regulation thereof as provided in this chapter is necessary to prevent or eliminate burdens on such commerce and to regulate effectively such commerce.
(b) It is also declared to be the policy of Congress—
(1) to promote the marketing of grain of high quality to both domestic and foreign buyers;
(2) that the primary objective of the official United States standards for grain is to certify the quality of grain as accurately as practicable; and
(3) that official United States standards for grain shall—
(A) define uniform and accepted descriptive terms to facilitate trade in grain;
(B) provide information to aid in determining grain storability;
(C) offer users of such standards the best possible information from which to determine end-product yield and quality of grain;
(D) provide the framework necessary for markets to establish grain quality improvement incentives;
(E) reflect the economic value-based characteristics in the end uses of grain; and
(F) accommodate scientific advances in testing and new knowledge concerning factors related to, or highly correlated with, the end use performance of grain.
(Aug. 11, 1916, ch. 313, pt. B, §2, 39 Stat. 482; July 18, 1940, ch. 636, 54 Stat. 765; Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 761; Pub. L. 94–582, §2, Oct. 21, 1976, 90 Stat. 2867; Pub. L. 99–641, title III, §302, Nov. 10, 1986, 100 Stat. 3564; Pub. L. 101–624, title XX, §2004, Nov. 28, 1990, 104 Stat. 3929.)
Editorial Notes
Amendments
1990—Subsec. (b)(3)(E), (F). Pub. L. 101–624 added subpars. (E) and (F).
1986—Pub. L. 99–641 designated existing provisions as subsec. (a) and added subsec. (b).
1976—Pub. L. 94–582 expressed the policy of Congress to regulate the weighing and the certification of the weight of grain shipped in interstate or foreign commerce and the finding of Congress of the necessity to regulate grain transactions to prevent or eliminate burdens on commerce and to regulate effectively such interstate or foreign commerce, and provided that the grain be marketed in a timely manner.
1968—Pub. L. 90–487 substituted a declaration of policy by the Congress for provisions authorizing promulgation and establishment of grain standards by Secretary of Agriculture.
1940—Act July 18, 1940, inserted "soybeans," after "flaxseed,".
Statutory Notes and Related Subsidiaries
Effective Date of 1976 Amendment
Pub. L. 94–582, §27, Oct. 21, 1976, 90 Stat. 2889, as amended by Pub. L. 95–113, title XVI, §§1602(d), 1605(b), 1607(b), 1608, Sept. 29, 1977, 91 Stat. 1025, 1030, 1031; Pub. L. 106–472, title I, §110(c), Nov. 9, 2000, 114 Stat. 2061, provided that: "This Act [see Short Title of 1976 Amendment note set out under section 71 of this title] shall become effective thirty days after enactment hereof [Oct. 21, 1976].
Effective Date of 1968 Amendment
For effective date of amendment by Pub. L. 90–487, see section 2 of Pub. L. 90–487, set out as a note under section 78 of this title.
§75. Definitions
When used in this chapter, except where the context requires otherwise—
(a) the term "Secretary" means the Secretary of Agriculture of the United States or delegates of the Secretary;
(b) the term "Department of Agriculture" means the United States Department of Agriculture;
(c) the term "person" means any individual, partnership, corporation, association, or other business entity;
(d) the term "United States" means the States (including Puerto Rico) and the territories and possessions of the United States (including the District of Columbia);
(e) the term "State" means any one of the States (including Puerto Rico) or territories or possessions of the United States (including the District of Columbia);
(f) the term "interstate or foreign commerce" means commerce from any State to or through any other State, or to or through any foreign country;
(g) the term "grain" means corn, wheat, rye, oats, barley, flaxseed, sorghum, soybeans, mixed grain, and any other food grains, feed grains, and oilseeds for which standards are established under section 76 of this title;
(h) the term "export grain" means grain for shipment from the United States to any place outside thereof;
(i) the term "official inspection" means the determination (by original inspection, and when requested, reinspection and appeal inspection) and the certification, by official inspection personnel of the kind, class, quality, or condition of grain, under standards provided for in this chapter, or the condition of vessels and other carriers or receptacles for the transportation of grain insofar as it may affect the quality or condition of such grain; or other facts relating to grain under other criteria approved by the Secretary under this chapter (the term "officially inspected" shall be construed accordingly);
(j) the term "official inspection personnel" means persons licensed or otherwise authorized by the Secretary pursuant to section 84 of this title to perform all or specified functions involved in official inspection, official weighing, or supervision of weighing, or in the supervision of official inspection, official weighing or supervision of weighing;
(k) the term "official mark" means any symbol prescribed by regulations of the Secretary to show the official determination of official inspection or official weighing;
(l) the term "official grade designation" means a numerical or sample grade designation, specified in the standards relating to kind, class, quality, and condition of grain, provided for in this chapter;
(m) the term "official agency" means any State or local governmental agency, or any person, designated by the Secretary pursuant to subsection (f) of section 79 of this title for the conduct of official inspection (other than appeal inspection), or subsection (c) of section 79a of this title for the conduct of official weighing or supervision of weighing (other than appeal weighing);
(n) the terms "official certificate" and "official form" mean, respectively, a certificate or other form prescribed by regulations of the Secretary under this chapter;
(o) the term "official sample" means a sample obtained from a lot of grain by, and submitted for official inspection by, official inspection personnel (the term "official sampling" shall be construed accordingly);
(p) the term "submitted sample" means a sample submitted by or for an interested person for official inspection, other than an official sample;
(q) the term "lot" means a specific quantity of grain identified as such;
(r) the term "interested person" means any person having a contract or other financial interest in grain as the owner, seller, purchaser, warehouseman, or carrier, or otherwise;
(s) the verb "ship" with respect to grain means transfer physical possession of the grain to another person for the purpose of transportation by any means of conveyance, or transport one's own grain by any means of conveyance;
(t) the terms "false", "incorrect", and "misleading" mean, respectively, false, incorrect, and misleading in any particular;
(u) the term "deceptive loading, handling, weighing, or sampling" means any manner of loading, handling, weighing, or sampling that deceives or tends to deceive official inspection personnel, as specified by regulations of the Secretary under this chapter;
(v) the term "export elevator" means any grain elevator, warehouse, or other storage or handling facility in the United States as determined by the Secretary, from which grain is shipped from the United States to an area outside thereof;
(w) the term "export port location" means a commonly recognized port of export in the United States or Canada, as determined by the Secretary, from which grain produced in the United States is shipped to any place outside the United States;
(x) the term "official weighing" means the determination and certification by official inspection personnel of the quantity of a lot of grain under standards provided for in this chapter, based on the actual performance of weighing or the physical supervision thereof, including the physical inspection and testing for accuracy of the weights and scales and the physical inspection of the premises at which the weighing is performed and the monitoring of the discharge of grain into the elevator or conveyance (the terms "officially weigh" and "officially weighed" shall be construed accordingly);
(y) the term "supervision of weighing" means such supervision by official inspection personnel of the grain-weighing process as is determined by the Secretary to be adequate to reasonably assure the integrity and accuracy of the weighing and of certificates which set forth the weight of the grain and such physical inspection by such personnel of the premises at which the grain weighing is performed as will reasonably assure that all the grain intended to be weighed has been weighed and discharged into the elevator or conveyance; and
(z) the term "intracompany shipment" means the shipment, within the United States, of grain lots between facilities owned or controlled by the person owning the grain. The shipment of grain owned by a cooperative, from a facility owned by that cooperative, to an export facility which it jointly owns with other cooperatives, qualifies as an intracompany shipment.
(Aug. 11, 1916, ch. 313, pt. B, §3, 39 Stat. 483; Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 761; Pub. L. 94–582, §3, Oct. 21, 1976, 90 Stat. 2867; Pub. L. 95–113, title XVI, §§1604(a), 1606(a), Sept. 29, 1977, 91 Stat. 1026, 1030; Pub. L. 96–437, §1, Oct. 13, 1980, 94 Stat. 1870; Pub. L. 102–237, title X, §1007(1), Dec. 13, 1991, 105 Stat. 1897; Pub. L. 103–156, §12(a), Nov. 24, 1993, 107 Stat. 1528; Pub. L. 103–354, title II, §293(a)(1), (7), Oct. 13, 1994, 108 Stat. 3237.)
Editorial Notes
Amendments
1994—Pub. L. 103–354 substituted "Secretary" for "Administrator" wherever appearing in subsecs. (i) to (k), (m), (n), (u) to (w), and (y), redesignated subsec. (bb) as (z), and struck out former subsecs. (z) and (aa) which read as follows:
"(z) the term 'Administrator' means the Administrator of the Federal Grain Inspection Service or delegates of the Administrator;
"(aa) the term 'Service' means the Federal Grain Inspection Service; and".
1993—Pub. L. 103–156, §12(a), which directed amendment of "Section 3", without specifying the name of the Act being amended, was executed to this section, which is section 3 of the United States Grain Standards Act, to reflect the probable intent of Congress.
Subsec. (a). Pub. L. 103–156, §12(a)(1), substituted "delegates of the Secretary" for "his delegates".
Subsec. (z). Pub. L. 103–156, §12(a)(2), substituted "delegates of the Administrator" for "his delegates".
1991—Subsecs. (i) to (k), (u) to (x), (z), (aa). Pub. L. 102–237 substituted "the" for "The" before "term".
1980—Subsec. (bb). Pub. L. 96–437 added subsec. (bb).
1977—Subsec. (g). Pub. L. 95–113, §1604(a)(1), substituted "sorghum" for "grain sorghum".
Subsec. (i). Pub. L. 95–113, §1606(a), struck out reference to the determination of the quantity of sacks of grain upon the request of the interested party applying for inspection.
Subsec. (m). Pub. L. 95–113, §1604(a)(2), substituted "or subsection (c) of section 79a of this title for the conduct of official weighing or supervision of weighing (other than appeal weighing)" for "or subsection (b) of section 79a of this title for the conduct of supervision of weighing".
Subsec. (x). Pub. L. 95–113, §1604(a)(3), substituted "under standards provided for in this chapter" for "under standards provided in this chapter".
Subsec. (y). Pub. L. 95–113, §1604(a)(4), substituted "such supervision by official inspection personnel of the grain-weighing process as is determined by the Administrator to be adequate to reasonably assure the integrity and accuracy of the weighing and of certificates which set forth the weight of the grain and such physical inspection by such personnel of the premises at which the grain weighing is performed as will reasonably assure that all the grain intended to be weighed has been weighed and discharged into the elevator or conveyance" for "the supervision of the weighing process and of the certification of the weight of grain, and the physical inspection of the premises at which the weighing is performed to assure that all the grain intended to be weighed has been weighed and discharged into the elevator or conveyance represented on the weight certificate or other document".
1976—Subsec. (i). Pub. L. 94–582, §3(a), substituted "Administrator" for "Secretary", and expanded definition of "official inspection" to include determination "(by original inspection, and when requested, reinspection and appeal inspection)" and determination and certification of the condition of vessels and other carriers or receptacles for the transportation of grain insofar as it may affect the quality or condition of the grain.
Subsec. (j). Pub. L. 94–582, §3(b), in redefining "official inspection personnel", substituted provision declaring term to mean "persons licensed or otherwise authorized by the Administrator pursuant to section 84 of this title to perform all or specified functions involved in official inspection, official weighing, or supervision of weighing, or in the supervision of official inspection, official weighing or supervision of weighing" for "employees of State or other governmental agencies or commercial agencies or other persons who are licensed to perform all or specified functions involved in official inspection under this chapter; employees of the Department of Agriculture who are authorized to supervise official inspection and to conduct appeal inspection or initial inspection of United States grain in Canadian ports".
Subsec. (k). Pub. L. 94–582, §3(c), substituted "Administrator" for "Secretary" and "official inspection or official weighing" for "an official inspection".
Subsec. (l). Pub. L. 94–582, §3(d), substituted "standards relating to kind, class, quality, and condition of grain," for "standards".
Subsec. (m). Pub. L. 94–582, §3(e), substituted definition of "official agency" meaning "any State or local governmental agency, or any person, designated by the Administrator pursuant to subsection (f) of section 79 of this title for the conduct of official inspection (other than appeal inspection), or subsection (b) of section 79a of this title for the conduct of supervision of weighing" for definition of "official inspection agency" meaning "the agency or person located at an inspection point designated by the Secretary for the conduct of official inspection under this chapter".
Subsec. (n). Pub. L. 94–582, §3(f), substituted "Administrator" for "Secretary".
Subsec. (u). Pub. L. 94–582, §3(g), included within term defined and its definition the concept of "weighing" and substituted "Administrator" for "Secretary".
Subsecs. (v) to (aa). Pub. L. 94–582, §3(h), added subsecs. (v) to (aa).
1968—Pub. L. 90–487 substituted provisions defining terms used in the chapter for provisions that the standards fixed and established by the Secretary of Agriculture be known as the official grain standards of the United States.
Statutory Notes and Related Subsidiaries
Effective Date of 1993 Amendment
Pub. L. 103–156, §16, Nov. 24, 1993, 107 Stat. 1530, provided that:
"(a)
"(b)
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date of 1976 Amendment
Amendment by Pub. L. 94–582 effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as a note under section 74 of this title.
Effective Date of 1968 Amendment
For effective date of amendment by Pub. L. 90–487, see section 2 of Pub. L. 90–487, set out as a note under section 78 of this title.
§75a. Repealed. Pub. L. 103–354, title II, §293(a)(2), Oct. 13, 1994, 108 Stat. 3237
Section, act Aug. 11, 1916, ch. 313, pt. B, §3A, as added Oct. 21, 1976, Pub. L. 94–582, §4, 90 Stat. 2868; amended Sept. 29, 1977, Pub. L. 95–113, title XVI, §1604(b), 91 Stat. 1026; Nov. 24, 1993, Pub. L. 103–156, §15, 107 Stat. 1530, established Federal Grain Inspection Service in Department of Agriculture and provided for cost containment plan to make the Service more efficient.
§75b. Omitted
Editorial Notes
Codification
Section, Pub. L. 101–624, title XX, §2002, Nov. 28, 1990, 104 Stat. 3928, provided for establishment of Committee on Grain Quality and Grain Quality Coordinator, established duties of Coordinator with respect to grain quality and competitiveness, and provided for termination of section on Jan. 1, 2001.
§76. Standards and procedures; establishment, amendment, and revocation
(a) Authority of Secretary
The Secretary is authorized to investigate the handling, weighing, grading, and transportation of grain and to fix and establish (1) standards of kind, class, quality, and condition for corn, wheat, rye, oats, barley, flaxseed, sorghum, soybeans, mixed grain, and such other grains as in the judgment of the Secretary the usages of the trade may warrant and permit, and (2) standards or procedures for accurate weighing and weight certification and controls, including safeguards over equipment calibration and maintenance, for grain shipped in interstate or foreign commerce; and the Secretary is authorized to amend or revoke such standards or procedures whenever the necessities of the trade may require.
(b) Notice and opportunity for comment; standards regarding cleanliness of grain
(1) Before establishing, amending, or revoking any standards under this chapter, the Secretary shall publish notice of the proposals and give interested persons opportunity to submit data, views, and arguments thereon and, upon request, an opportunity to present data, views, and arguments orally in an informal manner. No standards established or amendments or revocations of standards under this chapter shall become effective less than one calendar year after promulgation thereof, unless in the judgment of the Secretary, the public health, interest, or safety require that they become effective sooner.
(2)(A)(i) If the Secretary determines that the establishment or amendment of standards regarding cleanliness conditions of wheat, corn, barley, sorghum and soybeans that meet the requirements for grade number 3 or better (as set forth in subparagraph (B)) would—
(I) enhance the competitiveness of exports of wheat, corn, barley, sorghum and soybeans from the United States with wheat, corn, barley, sorghum and soybean exports marketed by other major exporters;
(II) result in the maintenance or expansion of the United States export market share for wheat, corn, barley, sorghum and soybeans;
(III) result in the maintenance or increase of United States producer income; and
(IV) be in the interest of United States agriculture, taking into consideration technical constraints, economic benefits and costs to producers and industry, price competitiveness, and importer needs;
the Secretary shall establish or amend the standards to include economically and commercially practical levels of cleanliness for wheat, corn, barley, sorghum and soybeans.
(ii) The Secretary shall make a finding under this subsection for grain of the type described in clause (i) as soon as practicable after November 28, 1990.
(B)(i) In establishing requirements for cleanliness characteristics, the Secretary shall—
(I) consider technical constraints, economic benefits and costs to producers and industry, the price competitiveness of United States agricultural production, and levels of cleanliness met by major competing nations that export wheat, corn, barley, sorghum and soybeans;
(II) promulgate regulations after providing for notice and an opportunity for public comment; and
(III) phase in any requirements for cleanliness characteristics by incrementally decreasing the levels of the objectionable material permitted in shipments of grade number 3 or better wheat, corn, barley, sorghum and soybeans.
(ii) Following the phase-in period referred to in clause (i)(III), subsequent revision of cleanliness requirements shall be conducted consistent with the schedule of the Secretary for reviewing grain standards.
(C) If the Secretary determines to establish requirements for cleanliness characteristics under this section, the Secretary shall ensure that such requirements are fully implemented not later than 6 years after November 28, 1990.
(c) Grade determining factors related to physical soundness and purity; notice and opportunity for comment
(1) In establishing standards under subsection (a) for each grain for which official grades are established, the Secretary shall establish for each such grain official grade-determining factors and factor limits that reflect the levels of soundness and purity that are consistent with end-use performance goals of the major foreign and domestic users of each such grain. Such factors and factor limits for grades number 3 and better shall provide users of such standards the best possible information from which to determine end-use product quality. The Secretary shall establish factors and factor limits that will provide that grain meeting the requirements for grades number 3 and better will perform in accordance with general trade expectations for the predominant uses of such grain.
(2) In establishing factors and factor limits under paragraph (1), the Secretary shall provide for notice and an opportunity for public comment prior to making changes in the grade-determining factors and factor limits that shall be applicable under this section to grain that is officially graded.
(d) Moisture content criterion
If the Government of any country requests that moisture content remain a criterion in the official grade designations of grain, such criterion shall be included in determining the official grade designation of grain shipped to such country.
(Aug. 11, 1916, ch. 313, pt. B, §4, 39 Stat. 483; Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 762; Pub. L. 94–582, §5, Oct. 21, 1976, 90 Stat. 2869; Pub. L. 95–113, title XVI, §1604(c), Sept. 29, 1977, 91 Stat. 1027; Pub. L. 99–198, title XVI, §1671, Dec. 23, 1985, 99 Stat. 1632; Pub. L. 101–624, title XX, §§2005, 2006, Nov. 28, 1990, 104 Stat. 3930; Pub. L. 103–156, §12(b), Nov. 24, 1993, 107 Stat. 1528; Pub. L. 103–354, title II, §293(a)(7), Oct. 13, 1994, 108 Stat. 3237; Pub. L. 116–216, §9, Dec. 11, 2020, 134 Stat. 1051.)
Editorial Notes
Amendments
2020—Subsec. (a)(1). Pub. L. 116–216 substituted "soybeans, mixed" for "soybeans mixed".
1994—Subsecs. (a) to (c). Pub. L. 103–354 substituted "Secretary" for "Administrator" wherever appearing.
1993—Subsec. (a)(1). Pub. L. 103–156, which directed amendment of "Section 4(a)(1)" by substituting "the judgment of the Administrator" for "his judgment", without specifying the name of the Act being amended, was executed to this section, which is section 4 of the United States Grain Standards Act, to reflect the probable intent of Congress.
1990—Subsec. (b). Pub. L. 101–624, §2005, designated existing provisions as par. (1) and added par. (2).
Subsecs. (c), (d). Pub. L. 101–624, §2006, added subsec. (c) and redesignated former subsec. (c) as (d).
1985—Subsec. (c). Pub. L. 99–198 added subsec. (c).
1977—Subsec. (a). Pub. L. 95–113 substituted "sorghum" for "grain sorghum", "standards or procedures" for "standards", "weight certification and controls" for "weight certification procedures and controls", and "calibration and maintenance, for grain" for "calibration and maintenance for grain".
1976—Subsec. (a). Pub. L. 94–582, §5(a), authorized weighing of grain, designated existing provisions as cl. (1), inserted cl. (2), and reenacted provision for amendment or revocation of standards.
Subsec. (b). Pub. L. 94–582, §5(b), substituted "Administrator" for "Secretary" in two places.
1968—Pub. L. 90–487 substituted provisions authorizing Secretary to establish, amend, and revoke standards for provisions making the use of official standards compulsory, setting out exceptions, and providing for the right of appeal.
Statutory Notes and Related Subsidiaries
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date of 1976 Amendment
Amendment by Pub. L. 94–582 effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as a note under section 74 of this title.
Effective Date of 1968 Amendment
For effective date of amendment by Pub. L. 90–487, see section 2 of Pub. L. 90–487, set out as a note under section 78 of this title.
Benefits and Costs Associated With Improved Grain Quality
Pub. L. 101–624, title XX, §2003, Nov. 28, 1990, 104 Stat. 3929, provided that: "The Administrator of the Federal Grain Inspection Service shall estimate the economic impact, including the benefits and costs and the distribution of such benefits and costs, of any major changes necessary to carry out the amendments made under this title to sections 4 and 13 of the United States Grain Standards Act (7 U.S.C. 76 and 87b) prior to making such changes."
Revision of Grain Inspection Procedures To Reflect Levels of Insect Infestation
Pub. L. 99–641, title III, §304, Nov. 10, 1986, 100 Stat. 3565, provided that: "Not later than 6 months after the date of enactment of this Act [Nov. 10, 1986], the Administrator of the Federal Grain Inspection Service shall issue a final rule that revises grain inspection procedures and standards established under the United States Grain Standards Act (7 U.S.C. 71 et seq.) to more accurately reflect levels of insect infestation."
Study of Uniform End-Use Value Tests for Grain
Pub. L. 99–641, title III, §307, Nov. 10, 1986, 100 Stat. 3566, as amended by Pub. L. 104–66, title I, §1011(i), Dec. 21, 1995, 109 Stat. 710, provided that:
"(a)
"(1) A survey of domestic and foreign buyers of grain to identify the information about grain characteristics that would be most useful to such buyers. The survey shall take into account those factors that buyers specify in contracts, test for, measure, or would measure if tests were available, including—
"(A) the starch, oil, and protein content, breakage susceptibility, and individual kernel moisture of corn;
"(B) the baking characteristics, protein content, gluten content and quality, and milling hardness of wheat; and
"(C) the protein, oil, and free-fatty-acid content of soybeans.
"(2) A review of the development and availability of tests for the characteristics identified in the survey conducted under paragraph (1), including an evaluation of the costs of providing such tests.
"(b)
"(1)
"(2)
New Grain Classifications
Pub. L. 99–198, title XVI, §1672, Dec. 23, 1985, 99 Stat. 1632, provided that:
"(a) The Secretary of Agriculture shall direct the Federal Grain Inspection Service and the Agricultural Research Service to cooperate in developing new means of establishing grain classifications taking into account characteristics other than those visually evident.
"(b) The Secretary shall report to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate, semiannually, with the first report due not later than December 31, 1985, on the status of cooperative efforts required under subsection (a), as such efforts relate to more accurately classifying types of wheat and other grains currently in use."
Investigation and Study Regarding Adequacy of Grain Standards; Changes in Standards; Report to Congress by October 21, 1978
Pub. L. 94–582, §24, Oct. 21, 1976, 90 Stat. 2888, which provided for investigation and study by Administrator of the Federal Grain Inspection Service regarding adequacy of grain standards established under this chapter in relation to needs and concerns of domestic and foreign grain buyers, with Administrator, as result of such study, to make necessary changes in grain standards, and to submit report to Congress setting forth findings of study and actions taken as result thereof not later than two years after Oct. 21, 1976, was repealed by Pub. L. 106–472, title I, §110(b), Nov. 9, 2000, 114 Stat. 2061.
§77. Official inspection and weighing requirements; waiver; supervision by representatives of Secretary
(a) Official samples and certificates; waiver; excepted grains
Whenever standards or procedures are effective under section 76 of this title for any grain—
(1) no person shall ship from the United States to any place outside thereof any lot of such grain, unless such lot is officially weighed and officially inspected in accordance with such standards or procedures, and unless a valid official certificate showing the official grade designation and certified weight of the lot of grain has been provided by official inspection personnel and is promptly furnished by the shipper, or the agent of the shipper, to the consignee with the bill of lading or other shipping documents covering the shipment: Provided, That the Secretary shall waive the foregoing requirement in emergency or other circumstances that would not impair the objectives of this chapter whenever the parties to a contract for such shipment mutually agree to the waiver and documentation of such agreement is provided to the Secretary prior to shipment: Provided further, That the Secretary shall waive the requirement for official inspection whenever the parties to a contract for such shipment of a lot of grain (which is not sold, offered for sale, or consigned for sale by grade) from the United States to any place outside thereof mutually agree under the contract to ship such lot of grain without official inspection being performed and a copy of the contract is furnished to the Secretary prior to shipment;
(2) except as the Secretary may provide in emergency or other circumstances which would not impair the objectives of this chapter, all other grain transferred out of and all grain transferred into an export elevator at an export port location shall be officially weighed in accordance with such standards or procedure: Provided, That, unless the shipper or receiver requests that the grain be officially weighed, shipments of grain into an export elevator by any mode of transportation and grain transferred out of an export elevator to destinations within the United States shall not be officially weighed; and
(3) except as otherwise authorized by the Secretary, whenever a lot of grain is both officially inspected and officially weighed while being transferred into or out of a grain elevator, warehouse, or other storage or handling facility, an official certificate shall be issued showing both the official grade designation and the certified weight of the lot of grain.
(b) Supervision by representatives of Secretary
All official inspection and official weighing, whether performed by authorized employees of the Secretary or any other person licensed under section 84 of this title, shall be supervised by representatives of the Secretary, in accordance with such regulations as the Secretary may provide.
(c) Testing for aflatoxin contamination of corn shipped in foreign commerce
The Secretary is authorized and directed to require that all corn exported from the United States be tested to ascertain whether it exceeds acceptable levels of aflatoxin contamination, unless the contract for export between the buyer and seller stipulates that aflatoxin testing shall not be conducted.
(d) Disruption in grain inspection or weighing
In the case of a disruption in official grain inspections or weighings, including if the Secretary waives the requirement for official inspection due to an emergency under subsection (a)(1), the Secretary shall—
(1) immediately take such actions as are necessary to address the disruption and resume inspections or weighings;
(2) not later than 24 hours after the start of the disruption in inspection or weighing, submit to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate a report that describes—
(A) the disruption; and
(B) any actions necessary to address the concerns of the Secretary relating to the disruption so that inspections or weighings may resume; and
(3) once the initial report in paragraph (2) has been made, provide daily updates until official inspection or weighing services at the site of disruption have resumed.
(Aug. 11, 1916, ch. 313, pt. B, §5, 39 Stat. 483; Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 763; Pub. L. 94–582, §6, Oct. 21, 1976, 90 Stat. 2869; Pub. L. 95–113, title XVI, §1606(b), Sept. 29, 1977, 91 Stat. 1030; Pub. L. 96–437, §2, Oct. 13, 1980, 94 Stat. 1870; Pub. L. 101–624, title XX, §2007, Nov. 28, 1990, 104 Stat. 3931; Pub. L. 103–156, §12(c), Nov. 24, 1993, 107 Stat. 1528; Pub. L. 103–354, title II, §293(a)(3), (7), Oct. 13, 1994, 108 Stat. 3237; Pub. L. 106–472, title I, §101, Nov. 9, 2000, 114 Stat. 2059; Pub. L. 114–54, title III, §301(a), Sept. 30, 2015, 129 Stat. 516.)
Editorial Notes
Amendments
2015—Subsec. (a)(1). Pub. L. 114–54, §301(a)(1), substituted "shall waive the foregoing requirement in emergency or other circumstances that would not impair the objectives of this chapter whenever the parties to a contract for such shipment mutually agree to the waiver and documentation of such agreement is provided to the Secretary prior to shipment" for "may waive the foregoing requirement in emergency or other circumstances which would not impair the objectives of this chapter".
Subsec. (a)(2). Pub. L. 114–54, §301(a)(2), substituted "shipments of grain into an export elevator by any mode of transportation" for "intracompany shipments of grain into an export elevator by any mode of transportation, grain transferred into an export elevator by transportation modes other than barge,".
Subsec. (d). Pub. L. 114–54, §301(a)(3), added subsec. (d).
2000—Subsec. (a)(1). Pub. L. 106–472 struck out "(on the basis of official samples taken after final elevation as near the final spout through which the grain passes as physically practicable as it is being loaded aboard, or while it is in, the final carrier in which it is to be transported from the United States)" after "officially inspected".
1994—Pub. L. 103–354 substituted "employees of the Secretary" for "Service employees" in subsec. (b) and "Secretary" for "Administrator" wherever appearing.
1993—Pub. L. 103–156, §12(c), which directed amendment of "Section 5", without specifying the name of the Act being amended, was executed to this section, which is section 5 of the United States Grain Standards Act, to reflect the probable intent of Congress.
Subsec. (a)(1). Pub. L. 103–156, §12(c)(1), substituted "the agent of the shipper" for "his agent".
Subsec. (b). Pub. L. 103–156, §12(c)(2), substituted "regulations as the Administrator" for "regulations as he".
1990—Subsec. (c). Pub. L. 101–624 added subsec. (c).
1980—Subsec. (a)(2). Pub. L. 96–437 inserted proviso that, unless the shipper or receiver requests that the grain be officially weighed, intracompany shipments of grain into an export elevator by any mode of transportation, grain transferred into an export elevator by transportation modes other than barge, and grain transferred out of an export elevator to destinations within the United States shall not be officially weighed.
1977—Subsec. (a). Pub. L. 95–113 substituted "standards or procedures" for "standards" wherever appearing.
1976—Subsec. (a). Pub. L. 94–582 designated existing provisions as par. (1) of subsec. (a); struck out "that is sold, offered for sale, or consigned for sale by grade" after "any lot of such grain"; inserted official weighing requirement; substituted "officially inspected (on the basis of official samples taken after final elevation as near the final spout through which the grain passes as physically practicable as it is being loaded aboard, or while it is in, the final carrier in which it is to be transported from the United States)" for "officially inspected in accordance with such standards on the basis of official samples taken after final elevation as the grain is being loaded aboard, or while it is in, the final carrier in which it is to be transported from the United States"; required the certificate to show the certified weight of the lot of grain provided by official inspection personnel; substituted provision for waiver by the Administrator of requirement for official inspection certificate in emergency or other circumstances which would not impair the objectives of this chapter for provision for waiver by the Secretary of any requirement of this section with respect to shipments from or to any area or any other class of shipments when in his judgment it is impracticable to provide official inspection with respect to such shipments; inserted provision for waiver by Administrator of requirement for official inspection whenever the parties to a contract for such shipment of a lot of grain (which is not sold, offered for sale, or consigned for sale by grade) from the United States to any place outside thereof mutually agree under the contract to ship such lot of grain without official inspection being performed and a copy of the contract is furnished to the Administrator prior to shipment; and added pars. (2) and (3) of subsec. (a).
Subsec. (b). Pub. L. 94–582 added subsec. (b).
1968—Pub. L. 90–487 substituted provisions requiring an official inspection for export grains but authorizing the waiver of such requirements when official inspection is impracticable for provisions prohibiting misrepresentation respecting grade shipped or delivered for shipment, allowing reexamination, requiring hearing in the event of a false or misleading description, and allowing publication of findings.
Statutory Notes and Related Subsidiaries
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date of 1976 Amendment
Amendment by Pub. L. 94–582 effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as a note under section 74 of this title.
Effective Date of 1968 Amendment
For effective date of amendment by Pub. L. 90–487, see section 2 of Pub. L. 90–487, set out as a note under section 78 of this title.
§78. Use of official grade designations required; false or misleading grade designations for grain shipped out of the United States
(a) Whenever standards relating to kind, class, quality, or condition of grain are effective under section 76 of this title for any grain no person shall in any sale, offer for sale, or consignment for sale, which involves the shipment of such grain in interstate or foreign commerce, describe such grain as being of any grade in any advertising, price quotation, other negotiation of sale, contract of sale, invoice, bill of lading, other document, or description on bags or other containers of the grain, other than by an official grade designation, with or without additional information as to specified factors: Provided, That the description of such grain by any proprietary brand name or trademark that does not resemble an official grade designation, or with respect to interstate commerce, by the use of one or more grade factor designations set forth in the official United States standards for grain, or by other criteria shall not be deemed to be a description of grain as being of any grade.
(b) No person shall, in any sale, offer for sale, or consignment for sale, of any grain which involves the shipment of such grain from the United States to any place outside thereof, knowingly describe such grain by any official grade designation, or other description, which is false or misleading.
(Aug. 11, 1916, ch. 313, pt. B, §6, 39 Stat. 484; Pub. L. 85–509, July 11, 1958, 72 Stat. 352; Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 763; Pub. L. 94–582, §7, Oct. 21, 1976, 90 Stat. 2870; Pub. L. 95–113, title XVI, §1606(c), Sept. 29, 1977, 91 Stat. 1030.)
Editorial Notes
Amendments
1977—Subsec. (a). Pub. L. 95–113 substituted "criteria" for "factor information".
1976—Subsec. (a). Pub. L. 94–582 substituted "standards relating to kind, class, quality, or condition of grain" for "standards".
1968—Pub. L. 90–487 substituted provisions requiring the use of official grade designations and prohibiting the use of false or misleading description of grain shipped out of the United States, for provisions allowing the appeal to the Secretary from official grading, authorizing the payment of additional fees for employees required in making appeal inspections, and making the findings prima facie evidence of the grain's true grade.
1958—Pub. L. 85–509 authorized payment of employees assigned to perform appeal inspection for all overtime, night, or holiday work, and permitted acceptance of reimbursement for any sums paid for such work.
Statutory Notes and Related Subsidiaries
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date of 1976 Amendment
Amendment by Pub. L. 94–582 effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as a note under section 74 of this title.
Effective Date of 1968 Amendment
Pub. L. 90–487, §2, Aug. 15, 1968, 82 Stat. 770, provided that: "This Act [amending this section and sections 71, 74, 75, 76, 77, 79, 84, 85, 86, and 87 of this title and enacting sections 87a to 87h of this title] shall become effective one hundred and eighty days after enactment hereof [Aug. 15, 1968], except that the repeal of the mandatory inspection provisions with respect to grain shipped or delivered for shipment in interstate commerce shall become effective thirty days after enactment hereof, and the provisions of sections 6(a) and 13(a)(5) of the United States Grain Standards Act, as amended by this Act [subsec. (a) of this section and section 87b(a)(5) of this title] shall then become effective with respect to such grain."
§79. Official inspection
(a) Grain required to be officially inspected
The Secretary is authorized to cause official inspection under the standards provided for in section 76 of this title to be made of all grain required to be officially inspected as provided in section 77 of this title, in accordance with such regulations as the Secretary may prescribe.
(b) Inspections made pursuant to request of interested persons
The Secretary is further authorized, upon request of any interested person, and under such regulations as the Secretary may prescribe, to cause official inspection to be made with respect to any grain whether by official sample, submitted sample, or otherwise within the United States under standards provided for in section 76 of this title, or, upon request of the interested person, under other criteria approved by the Secretary for determining the kind, class, quality, or condition of grain, or other facts relating to grain, whenever in the judgment of the Secretary providing such service will effectuate any of the objectives stated in section 74 of this title.
(c) Reinspections and appeals; cancellation of superseded certificates; sale of samples
The regulations prescribed by the Secretary under this chapter shall include provisions for reinspections and appeal inspections; cancellation and surrender of certificates superseded by reinspections and appeal inspections; and the use of standard forms for official certificates. The Secretary may provide by regulation that samples obtained by or for employees of the Secretary for purposes of official inspection shall become the property of the United States, and such samples may be disposed of without regard to the provisions of chapters 1 to 11 of title 40 and division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41.
(d) Official certificates as evidence
Official certificates setting out the results of official inspection issued and not canceled under this chapter shall be received by all officers and all courts of the United States as prima facie evidence of the truth of the facts stated therein.
(e) Official inspection at export port locations; delegation of authority to State agencies
(1) Except as otherwise provided in paragraph (2) of this subsection, the Secretary shall cause official inspection at export port locations, for all grain required or authorized to be inspected by this chapter, to be performed by official inspection personnel employed by the Secretary or other persons under contract with the Secretary as provided in section 84 of this title.
(2)
(A)
(B)
(i)
(ii)
(I) publish in the Federal Register notice of intent to certify a State agency and provide a 30-day period for public comment;
(II) evaluate the public comments received and, in accordance with paragraph (3), conduct an investigation to determine whether the State agency is qualified;
(III) make findings based on the public comments received and investigation conducted; and
(IV) publish in the Federal Register a notice announcing whether the certification has been granted and describing the basis on which the Secretary made the decision.
(C)
(i)
(ii)
(3) Prior to delegating authority to a State agency for the performance of official inspection at export port locations pursuant to paragraph (2) of this subsection, the Secretary shall (A) conduct an investigation to determine whether such agency is qualified, and (B) make findings based on such investigation. In conducting the investigation, the Secretary shall consult with, and review the available files of the Department of Justice, the Office of Investigation of the Department of Agriculture (or such other organization or agency within the Department of Agriculture which may be delegated the authority, in lieu thereof, to conduct investigations on behalf of the Department of Agriculture), and the Government Accountability Office.
(4) The Secretary may provide that grain loaded at an interior point in the United States into a rail car, barge, or other container as the final carrier in which it is to be transported from the United States shall be inspected in the manner provided in this subsection or subsection (f) of this section, as the Secretary determines will best meet the objectives of this chapter.
(f) Official inspections at other than export port locations; designation of agencies or persons to conduct official inspections
(1) With respect to official inspections other than at export port locations, the Secretary is authorized, upon application by any State or local governmental agency, or any person, to designate such agency or person as an official agency for the conduct of all or specified functions involved in official inspection (other than appeal inspection) at locations where the Secretary determines official inspection is needed, if—
(A) the agency or person shows to the satisfaction of the Secretary that such agency or person—
(i) has adequate facilities and qualified personnel for the performance of such official inspection functions;
(ii) will provide for the periodic rotation of official inspection personnel among the grain elevators, warehouses, or other storage or handling facilities at which the State or person provides official inspection, as is necessary to preserve the integrity of the official inspection service;
(iii) will meet training requirements and personnel standards established by the Secretary under section 84(g) of this title;
(iv) will otherwise conduct such training and provide such supervision of its personnel as are necessary to assure that they will provide official inspection in accordance with this chapter and the regulations and instructions thereunder;
(v) will not charge official inspection fees that are discriminatory or unreasonable;
(vi) if a State or local governmental agency, will not use any moneys collected pursuant to the charging of fees for any purpose other than the maintenance of the official inspection operation of the State or local governmental agency;
(vii) and any related entities do not have a conflict of interest prohibited by section 87 of this title;
(viii) will maintain complete and accurate records of its organization, staffing, official activities, and fiscal operations, and such other records as the Secretary may require by regulation;
(ix) if a State or local governmental agency, will employ personnel on the basis of job qualifications rather than political affiliations;
(x) will comply with all provisions of this chapter and the regulations and instructions thereunder; and
(xi) meets other criteria established in regulations issued under this chapter relating to official functions under this chapter;
(B) the Secretary determines that the applicant is better able than any other applicant to provide official inspection service; and
(C) the Secretary—
(i) periodically conducts a consultation with the customers of the applicant, in a manner that provides opportunity for protection of the identity of the customer if desired by the customer, to review the performance of the applicant with regard to the provision of official inspection services and other requirements of this chapter; and
(ii) works with the applicant to address any concerns identified during the consultation process.
(2)
(A)
(B)
(i) the current designated official agency for that geographic area is unable to provide inspection services in a timely manner;
(ii) a person requesting inspection services in that geographic area has not been receiving official inspection services from the current designated official agency for that geographic area;
(iii) a person requesting inspection services in that geographic area requests a probe inspection on a barge-lot basis; or
(iv) the current official agency for that geographic area agrees in writing with the adjacent official agency to waive the current geographic area restriction at the request of the applicant for service.
(C)
(D)
(i)
(I) was granted an exception under the final rule entitled "Exceptions to Geographic Areas for Official Agencies Under the USGSA" (68 Fed. Reg. 19137 (April 18, 2003)); and
(II) had that exception revoked between September 30, 2015, and December 20, 2018.
(ii)
(I) the eligible grain handling facility and the former excepted official agency agree to restore that exception; and
(II) the eligible grain handling facility notifies the Secretary of the preferred date for restoration of the exception within 90 days of December 20, 2018.
(3) Except as authorized by the Secretary, no official agency or State delegated authority pursuant to subsection (e)(2) of this section shall officially inspect under this chapter any official or other sample drawn from a lot of grain and submitted for inspection unless such lot of grain is physically located within the geographic area assigned to the agency by the Secretary at the time such sample is drawn.
(4) No State or local governmental agency or person shall provide any official inspection for the purposes of this chapter except pursuant to an unsuspended and unrevoked delegation of authority or designation by the Secretary, as provided in this section, or as provided in section 84(a) of this title.
(g) Termination, renewal, amendment, cancellation, and revocation of designations of official agencies
(1) Designations of official agencies shall terminate at such time as specified by the Secretary but not later than every 5 years and may be renewed in accordance with the criteria and procedure prescribed in subsection (f) of this section.
(2) A designation of an official agency may be amended at any time upon application by the official agency if the Secretary determines that the amendment will be consistent with the provisions and objectives of this chapter; and a designation will be cancelled upon request by the official agency with ninety days written notice to the Secretary. A fee as prescribed by regulations of the Secretary shall be paid by the official agency to the Secretary for each such amendment, to cover the costs incurred by the Secretary in connection therewith, and it shall be deposited in the fund created in subsection (j) of this section.
(3) The Secretary may revoke a designation of an official agency whenever, after opportunity for hearing is afforded the agency, the Secretary determines that the agency has failed to meet one or more of the criteria specified in subsection (f) of this section or the regulations under this chapter for the performance of official functions, or otherwise has not complied with any provision of this chapter or any regulation prescribed or instruction issued to such agency under this chapter, or has been convicted of any violation of other Federal law involving the handling or official inspection of grain: Provided, That the Secretary may, without first affording the official agency an opportunity for a hearing, suspend any designation pending final determination of the proceeding whenever the Secretary has reason to believe there is cause for revocation of the designation and considers such action to be in the best interest of the official inspection system under this chapter. The Secretary shall afford any such agency an opportunity for a hearing within thirty days after temporarily suspending such designation.
(4)
(A)
(B)
(h) Official inspections at locations other than export port locations when designated official agencies are not available
If the Secretary determines that official inspection by an official agency designated under subsection (f) of this section is not available on a regular basis at any location (other than at an export port location) where the Secretary determines such inspection is needed to effectuate the objectives stated in section 74 of this title, and that no official agency within reasonable proximity to such location is willing to provide or has or can acquire adequate personnel and facilities for providing such service on an interim basis, official inspection shall be provided by authorized employees of the Secretary, and other persons licensed by the Secretary to perform official inspection functions, as provided in section 84 of this title, until such time as the service can be provided on a regular basis by an official agency.
(i) Official inspections in Canadian ports
The Secretary is authorized to cause official inspection under this chapter to be made, as provided in subsection (a) of section 77 of this title, in Canadian ports of United States export grain transshipped through Canadian ports, and pursuant thereto the Secretary is authorized to enter into an agreement with the Canadian Government for such inspection. All or specified functions of such inspections shall be performed by official inspection personnel employed by the Secretary or, except for appeals, by persons operating under a contract with the Secretary or as otherwise provided by agreement with the Canadian Government.
(j) Fees
(1)
(A)
(B)
(C)
(D)
(2) Each designated official agency and each State agency to which authority has been delegated under subsection (e) of this section shall pay to the Secretary fees in such amount as the Secretary determines fair and reasonable and as will cover the estimated costs incurred by the Secretary relating to supervision of official agency personnel and supervision by the Secretary of the Secretary's field office personnel, except costs incurred under paragraph (3) of subsection (g) of this section and sections 85, 86, and 87c of this title. The fees shall be payable after the services are performed at such times as specified by the Secretary and shall be deposited in the fund created in paragraph (1) of this subsection. Failure to pay the fee within thirty days after it is due shall result in automatic termination of the delegation or designation, which shall be reinstated upon payment, within such period as specified by the Secretary, of the fee currently due plus interest and any further expenses incurred by the Secretary because of such termination. The interest rate on overdue fees shall be as prescribed by the Secretary, but not less than the current average market yield on outstanding marketable obligations of the United States of comparable maturity, plus an additional charge of not to exceed 1 per centum per annum as determined by the Secretary and adjusted to the nearest one-eighth of 1 per centum.
(3) Any sums collected or received by the Secretary under this chapter and deposited to the fund created in paragraph (1) of this subsection and any late payment penalties collected by the Secretary and credited to such fund may be invested by the Secretary in insured or fully collateralized, interest-bearing accounts or, at the discretion of the Secretary, by the Secretary of the Treasury in United States Government debt instruments. The interest earned on such sums and any late payment penalties collected by the Secretary shall be credited to the fund and shall be available without fiscal year limitation for the expenses of the Secretary incident to providing services under this chapter.
(4)
(5) The duties imposed by paragraph (2) on designated official agencies and State agencies described in such paragraph and the investment authority provided by paragraph (3) shall expire on September 30, 2025. After that date, the fees established by the Secretary pursuant to paragraph (1) shall not cover administrative and supervisory costs related to the official inspection of grain.
(Aug. 11, 1916, ch. 313, pt. B, §7, 39 Stat. 484; Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 763; Pub. L. 94–582, §8, formerly §8(a), Oct. 21, 1976, 90 Stat. 2870, renumbered Pub. L. 106–472, title I, §110(a)(1), Nov. 9, 2000, 114 Stat. 2060; Pub. L. 95–113, title XVI, §§1602(a), 1604(d), 1606(d), Sept. 29, 1977, 91 Stat. 1025, 1027, 1030; Pub. L. 97–35, title I, §155(1), Aug. 13, 1981, 95 Stat. 371; Pub. L. 97–98, title IX, §1113(a), Dec. 22, 1981, 95 Stat. 1268; Pub. L. 98–469, §2(1), Oct. 11, 1984, 98 Stat. 1831; Pub. L. 100–518, §2(1), Oct. 24, 1988, 102 Stat. 2584; Pub. L. 103–156, §§4(a), 5(a), 12(d), 14(a), Nov. 24, 1993, 107 Stat. 1525, 1526, 1528, 1529; Pub. L. 103–354, title II, §293(a)(4), (7), (8), Oct. 13, 1994, 108 Stat. 3237; Pub. L. 106–472, title I, §§102(a), 103(a), Nov. 9, 2000, 114 Stat. 2059, 2060; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; Pub. L. 109–83, §1(a), Sept. 30, 2005, 119 Stat. 2053; Pub. L. 114–54, title III, §301(b)(1)–(3)(A), (4), (5), Sept. 30, 2015, 129 Stat. 517, 518; Pub. L. 115–334, title XII, §12610(a), (c), Dec. 20, 2018, 132 Stat. 5011, 5013; Pub. L. 116–216, §2, Dec. 11, 2020, 134 Stat. 1048.)
Editorial Notes
Codification
Section as originally enacted was composed of part of section 7 of part B of act Aug. 11, 1916. Other provisions of section 7 were classified to former sections 80 to 83 of this title.
In subsec. (c), "chapters 1 to 11 of title 40 and division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41" substituted for "the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 471 et seq.)" on authority of Pub. L. 107–217, §5(c), Aug. 21, 2002, 116 Stat. 1303, which Act enacted Title 40, Public Buildings, Property, and Works, and Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
Amendments
2020—Subsec. (e)(2)(C)(i). Pub. L. 116–216, §2(1), inserted "and affected customers or applicants for service of official inspection or weighing services provided by the State agency" after "notify the Secretary".
Subsec. (j)(5). Pub. L. 116–216, §2(2), substituted "2025" for "2020".
2018—Subsec. (f)(1)(C). Pub. L. 115–334, §12610(c), realigned margins.
Subsec. (f)(2). Pub. L. 115–334, §12610(a)(1), inserted subpar. (A) designation and heading before "Not more" and subpar. (B) designation and heading before "the Secretary determines" in introductory provisions, substituted "Subject to subparagraph (B), not more" for "Not more" and "Secretary." for "Secretary, except that, if" in subpar. (A) and "Subject to subsection (g)(4)(A), if the Secretary determines" for "the Secretary determines" in introductory provisions of subpar. (B), redesignated former subpars. (A), (B), and (C) as cls. (i), (iii), and (iv), respectively, of subpar. (B), added cl. (ii) of subpar. (B) and subpars. (C) and (D), and realigned margins.
Subsec. (g)(4). Pub. L. 115–334, §12610(a)(2), added par. (4).
2015—Subsec. (e)(2). Pub. L. 114–54, §301(b)(1), inserted heading, designated existing provisions as subpar. (A) and inserted subpar. heading, redesignated former subpars. (A) and (B) as cls. (i) and (ii), respectively, and former cls. (i) to (iii) of subpar. (B) as subcls. (I) to (III), respectively, of cl. (ii), and added subpars. (B) and (C).
Subsec. (f)(1)(C). Pub. L. 114–54, §301(b)(2), added subpar. (C).
Subsec. (f)(2). Pub. L. 114–54, §301(b)(3)(A), in introductory provisions, substituted "the Secretary shall allow a designated official agency to cross boundary lines to carry out inspections in another geographic area if—" for "the Secretary may—", added subpars. (A) to (C), and struck out former subpars. (A) and (B) which related to more than one designated official agency carrying out inspections in the same geographic area and a designated official agency crossing boundary lines to carry out inspections in another geographic area.
Subsec. (g)(1). Pub. L. 114–54, §301(b)(4), substituted "every 5 years" for "triennially".
Subsec. (j). Pub. L. 114–54, §301(b)(5)(A), inserted heading.
Subsec. (j)(1). Pub. L. 114–54, §301(b)(5)(A), (B), inserted heading, designated first to third sentences as subpars. (A) to (C), respectively, and inserted subpar. headings, in subpar. (C), substituted "Fees described in this paragraph" for "Such fees", and added subpar. (D).
Subsec. (j)(4). Pub. L. 114–54, §301(b)(5)(D), added par. (4). Former par. (4) redesignated (5).
Subsec. (j)(5). Pub. L. 114–54, §301(b)(5)(C), (E), redesignated par. (4) as (5) and substituted "2020" for "2015".
2005—Subsec. (j)(4). Pub. L. 109–83 substituted "2015" for "2005".
2004—Subsec. (e)(3). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office".
2000—Subsec. (f)(2). Pub. L. 106–472, §102(a), added heading and text of par. (2) and struck out former par. (2) which read as follows: "Not more than one official agency or State delegated authority pursuant to subsection (e)(2) of this section for carrying out the inspection provisions of this chapter shall be operative at one time for any geographic area as determined by the Secretary to effectuate the objectives stated in section 74 of this title, except that the Secretary may conduct pilot programs to allow more than 1 official agency to carry out inspections within a single geographical area without undermining the policy stated in section 74 of this title."
Subsec. (j)(4). Pub. L. 106–472, §103(a), substituted "2005" for "2000" in first sentence.
1994—Pub. L. 103–354 substituted "supervision by the Secretary of the Secretary's field office personnel" for "supervision of Service personnel of its field office personnel" in first sentence of subsec. (j)(2) and substituted "Secretary" for "Administrator" and "Service" wherever appearing.
1993—Pub. L. 103–156, §12(d), which directed amendment of "Section 7", without specifying the name of the Act being amended, was executed to this section, which is section 7 of the United States Grain Standards Act, to reflect the probable intent of Congress.
Subsec. (a). Pub. L. 103–156, §12(d)(1), substituted "regulations as the Administrator" for "regulations as he".
Subsec. (b). Pub. L. 103–156, §12(d)(2), substituted "regulations as the Administrator" for "regulations as he" and "the judgment of the Administrator" for "his judgment".
Subsec. (e)(2). Pub. L. 103–156, §12(d)(3), substituted "oversight as the Administrator" for "oversight as he" and "the discretion of the Administrator" for "his discretion".
Subsec. (f)(1)(A)(vi). Pub. L. 103–156, §4(a)(1), substituted "of the State" for "or other agricultural programs operated by the State".
Subsec. (f)(2). Pub. L. 103–156, §5(a), inserted before period at end ", except that the Administrator may conduct pilot programs to allow more than 1 official agency to carry out inspections within a single geographical area without undermining the policy stated in section 74 of this title".
Subsec. (i). Pub. L. 103–156, §4(a)(2), inserted before period at end "or as otherwise provided by agreement with the Canadian Government".
Subsec. (j)(4). Pub. L. 103–156, §14(a), added par. (4).
1988—Subsec. (j). Pub. L. 100–518 reenacted subsec. (j) without change.
1984—Subsec. (j)(3). Pub. L. 98–469 temporarily added par. (3). See Effective and Termination Dates of 1984 Amendment note below.
1981—Subsec. (e)(2). Pub. L. 97–98 inserted provision authorizing the Administrator to delegate authority to perform grain inspection functions at export port locations to any State agency that performed official inspection at an export port location at any time prior to July 1, 1976, was designated under subsec. (f) of this section on Dec. 22, 1981, to perform inspections at locations other than export port locations, and operates in a State from which the total annual exports of grain do not exceed 5 per centum of the total amount of grain exported from the United States.
Subsec. (j). Pub. L. 97–35 temporarily designated existing provisions as par. (1), made changes in nomenclature and provided for inclusion, rather than exclusion, of administrative and supervisory costs, and added par. (2). See Effective and Termination Dates of 1981 Amendments note below.
1977—Subsec. (b). Pub. L. 95–113, §1606(d), struck out reference to a determination of the quantity of sacks of grain.
Subsec. (e). Pub. L. 95–113, §1604(d)(1), designated as par. (4) provisions, formerly forming a part of par. (2), authorizing the Administrator to provide that grain loaded at an interior point in the United States into a rail car, barge, or other container as the final carrier in which it is to be transported from the United States be inspected in the manner provided in this subsection or subsec. (f) of this section, as the Administrator determines best meets the objectives of this chapter.
Subsec. (f)(2). Pub. L. 95–113, §1604(d)(2), substituted "official agency or State delegated authority pursuant to subsection (e)(2) of this section for carrying out the inspection provisions of this chapter" for "official agency for carrying out the provisions of this chapter", struck out ", but this paragraph shall not be applicable to prevent any inspection agency from operating in any area in which it was operative on August 15, 1968" after "section 74 of this title", and redesignated other existing provisions as pars. (3) and (4).
Subsec. (f)(3). Pub. L. 95–113, §1604(d)(2)(B), (C), redesignated a portion of existing par. (2) as (3) and substituted "Except as authorized by the Administrator, no" for "No".
Subsec. (f)(4). Pub. L. 95–113, §1604(d)(2)(D), redesignated a portion of existing par. (2) as (4).
Subsec. (g)(1). Pub. L. 95–113, §1604(d)(3), substituted "prescribed in subsection (f)" for "prescribed in subsections (e) and (f)".
Subsec. (i). Pub. L. 95–113, §1604(d)(4), inserted provision that all or specified functions of the inspections be performed by official inspection personnel employed by the Service or, except for appeals, by persons operating under a contract with the Service.
Subsec. (j). Pub. L. 95–113, §1602(a), revised provisions relating to fees so as to remove requirement that field supervision of inspection be supported by fees.
1976—Subsec. (a). Pub. L. 94–582, §8(1), formerly §8(a)(1), as renumbered by Pub. L. 106–472, §110(a)(1), substituted "Administrator" for "Secretary".
Subsec. (b). Pub. L. 94–582, §8(1), (2), formerly §8(a)(1), (2), as renumbered by Pub. L. 106–472, §110(a)(1), substituted "Administrator" for "Secretary" in two places and struck out from first sentence "or with respect to United States grain in Canadian ports" after "within the United States".
Subsec. (c). Pub. L. 94–582, §8(1), (3), formerly §8(a)(1), (3), as renumbered by Pub. L. 106–472, §110(a)(1), substituted "Administrator" for "Secretary" in two places; and substituted "Service" for "Department of Agriculture" and "cancellation and surrender" for "cancellation" and required regulation provision for use of standard forms for official certificates, respectively.
Subsec. (d). Pub. L. 94–582, §8(4), formerly §8(a)(4), as renumbered by Pub. L. 106–472, §110(a)(1), substituted "Official certificates setting out the results of official inspection" for "Certificates".
Subsec. (e). Pub. L. 94–582, §8(5), formerly §8(a)(5), as renumbered by Pub. L. 106–472, §110(a)(1), added subsec. (e) and struck out former subsec. (e) which authorized charging and collection of reasonable fees to cover cost of official inspection and to cover costs of Department of Agriculture incident to performance of appeal and Canadian port inspection services for which fees are collected, including supervisory and administrative costs, and for deposit of fees and proceeds from sale of samples obtained for purposes of official inspection which become property of the United States into a fund to be available without fiscal year limitation for expenses of the Department of Agriculture incident to providing official inspection services. Fee provisions are now covered in subsec. (j)(2) of this section.
Subsec. (f). Pub. L. 94–582, §8(5), formerly §8(a)(5), as renumbered by Pub. L. 106–472, §110(a)(1), added par. (1) and second and third sentences of par. (2), and designated existing provisions as par. (2), substituting "one official agency for carrying out the provisions of this chapter shall be operative at one time for any geographic area as determined by the Administrator to effectuate the objectives stated in section 74 of this title" for "one inspection agency for carrying out the provisions of this section shall be operative at one time for any one city, town, or other area".
Subsecs. (g) to (j). Pub. L. 94–582, §8(5), formerly §8(a)(5), as renumbered by Pub. L. 106–472, §110(a)(1), added subsecs. (g) to (j).
1968—Pub. L. 90–487 substituted provisions covering the authority and funding of official inspections for provisions covering the licensing of inspectors and the utilization by the Secretary of Agriculture of State inspectors.
Statutory Notes and Related Subsidiaries
Effective Date of 2005 Amendment
Pub. L. 109–83, §1(b), Sept. 30, 2005, 119 Stat. 2053, provided that: "The amendments made by subsection (a) [amending this section and sections 79a, 79d, 87h, and 87j of this title] take effect on September 30, 2005."
Effective Date of 2000 Amendment
Pub. L. 106–472, title I, §111, Nov. 9, 2000, 114 Stat. 2061, provided that: "The amendments made by sections 103, 105, 108, and 109 [amending this section and sections 79a, 79d, 87h, and 87j of this title] shall take effect as if enacted on September 30, 2000."
Effective and Termination Dates of 1988 Amendment
That part of section 2 of Pub. L. 100–518 which provided that the amendment made by Pub. L. 100–518 was effective for period Oct. 1, 1988, through Sept. 30, 1993, inclusive, was repealed by Pub. L. 103–156, §§13(a), 16(b), Nov. 24, 1993, 107 Stat. 1529, 1530, eff. Sept. 30, 1993.
Effective and Termination Dates of 1984 Amendment
Pub. L. 98–469, §2, Oct. 11, 1984, 98 Stat. 1831, provided that the amendment made by Pub. L. 98–469 is effective for period beginning Oct. 11, 1984, and ending Sept. 30, 1988.
Effective and Termination Dates of 1981 Amendment
Pub. L. 97–98, title XI, §1113(b), Dec. 22, 1981, 95 Stat. 1268, provided that: "The provisions of this section [amending this section] shall become effective one hundred and eighty days after enactment of this Act [Dec. 22, 1981]."
Pub. L. 97–35, title I, §155, Aug. 13, 1981, 95 Stat. 371, as amended by Pub. L. 98–469, §1, Oct. 11, 1984, 98 Stat. 1831, provided that the amendment made by Pub. L. 97–35 is effective for period beginning Oct. 1, 1981, and ending Sept. 30, 1988.
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date of 1976 Amendment
Amendment by Pub. L. 94–582 effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as a note under section 74 of this title.
Effective Date of 1968 Amendment
For effective date of amendment by Pub. L. 90–487, see section 2 of Pub. L. 90–487, set out as a note under section 78 of this title.
Investigations and Studies of Grain Inspection and Weighing in Interior of United States; Completion of Studies and Submission of Reports by May 20, 1979, and Nov. 20, 1979, Respectively
Pub. L. 94–582, §8(b), Oct. 21, 1976, 90 Stat. 2874, as amended by Pub. L. 95–113, title XVI, §§1605(a), 1607(a), Sept. 29, 1977, 91 Stat. 1029, 1031, which directed the Administrator of the Federal Grain Inspection Service, the Director of the Office of Investigation of the United States Department of Agriculture, and the Comptroller General of the United States to severally conduct investigations into and study grain inspection and weighing in the interior of the United States, and required the Administrator and Director to submit reports to Congress not later than 30 months after Oct. 21, 1976, and the Comptroller General to submit a report not later than three years after Oct. 21, 1976, was repealed by Pub. L. 106–472, title I, §110(a)(2), Nov. 9, 2000, 114 Stat. 2060.
1 So in original. Probably should be "the Secretary's".
§79a. Weighing authority
(a) Official weighing in accordance with prescribed regulations
The Secretary shall cause official weighing under standards or procedures provided for in section 76 of this title to be made of all grain required to be officially weighed as provided in section 77 of this title, in accordance with such regulations as the Secretary may prescribe.
(b) Official weighing or supervision of weighing at grain elevators, warehouses, or other storage or handling facilities located other than at export elevators at export port locations
The Secretary is authorized to cause official weighing or supervision of weighing under standards or procedures provided in section 76 of this title to be performed at any grain elevator, warehouse, or other storage or handling facility located other than at export elevators at export port locations at which official inspection is provided pursuant to the provisions of this chapter, in such manner as the Secretary deems appropriate and under such regulations as the Secretary may provide.
(c) Personnel performing official weighing or supervision of weighing at locations at which official inspection is provided
(1) With respect to official weighing or supervision of weighing for locations at which official inspection is provided by the Secretary, the Secretary shall cause such official weighing or supervision of weighing to be performed by official inspection personnel employed by the Secretary.
(2) With respect to official weighing or supervision of weighing for any location at which official inspection is provided other than by the Secretary, the Secretary is authorized, with respect to export port locations, to delegate authority to perform official weighing or supervision of weighing to the State agency providing official inspection service at such location, and with respect to any other location, to designate the agency or person providing official inspection service at such location to perform official weighing or supervision of weighing, if such agency or person qualifies for a delegation of authority or designation under section 79 of this title, except that where the term "official inspection" is used in such section it shall be deemed to refer to "official weighing" or "supervision of weighing" under this section. If such agency or person is not available to perform such weighing services, or the Secretary determines that such agency or person is not qualified to perform such weighing services, then (A) at export port locations official weighing or supervision of weighing shall be performed by official inspection personnel employed by the Secretary, and (B) at any other location, the Secretary is authorized to cause official weighing or supervision of weighing to be performed by official inspection personnel employed by the Secretary or designate any State or local governmental agency, or any person to perform official weighing or supervision of weighing, if such agency or person meets the same criteria that agencies must meet to be designated to perform official inspection as set out in section 79 of this title, except that where the term "official inspection" is used in such section it shall be deemed to refer to "official weighing" or "supervision of weighing" under this section. Delegations and designations made pursuant to this subsection shall be subject to the same provisions for delegations and designations set forth in subsections (e) and (g) of section 79 of this title.
(d) Official weighing in Canadian ports
The Secretary is authorized to cause official weighing under this chapter to be made, as provided in subsection (a) of section 77 of this title, in Canadian ports of United States export grain transshipped through Canada; and pursuant thereto the Secretary is authorized to enter into an agreement with the Canadian Government for such official weighing. All or specified functions of such weighing shall be performed by official inspection personnel employed by the Secretary or, except for appeals, by persons operating under a contract with the Secretary or as otherwise provided by agreement with the Canadian Government.
(e) Official weighing or supervision of weighing upon request of operators of grain elevators, warehouses, or other storage or handling facilities
The Secretary is further authorized to cause official weighing or supervision of weighing under standards or procedures provided for in section 76 of this title to be made at grain elevators, warehouses, or other storage or handling facilities not subject to subsection (a) or (b) of this section, upon request of the operator of such grain elevator, warehouse, or other storage or handling facility and in accordance with such regulations as the Secretary may prescribe.
(f) Demonstrated willingness of operators of grain elevators, warehouses, or other storage or handling facilities to meet equipment and personnel requirements
No official weighing or supervision of weighing shall be provided for the purposes of this chapter at any grain elevator, warehouse, or other storage or handling facility until such time as the operator of the facility has demonstrated to the satisfaction of the Secretary that the operator (1) has and will maintain, in good order, suitable grain-handling equipment and accurate scales for all weighing of grain at the facility, in accordance with the regulations of the Secretary; (2) will permit only competent persons with a reputation for honesty and integrity and who are approved by the Secretary to operate the scales and to handle grain in connection with weighing of the grain, in accordance with this chapter; (3) when weighing is to be done by persons other than official inspection personnel, will require such persons to operate the scales in accordance with the regulations of the Secretary and to require that each lot of grain for delivery from any railroad car, truck, barge, vessel, or other means of conveyance at the facility is entirely removed from such means of conveyance and delivered to the scales without avoidable waste or loss, and each lot of grain weighed at the elevator for shipment from the facility is entirely delivered to the means of conveyance for which intended, and without avoidable waste or loss, in accordance with the regulations of the Secretary; (4) will provide all assistance needed by the Secretary for making any inspection or examination and carrying out other functions at the facility pursuant to this chapter; and (5) will comply with all other requirements of this chapter and the regulations hereunder.
(g) Official certificates as evidence
Official certificates setting out the results of official weighing or supervision of weighing, issued and not cancelled under this chapter, shall be received by all officers and all courts of the United States as prima facie evidence of the truth of the facts stated therein.
(h) Weighing prohibited when not in accordance with prescribed procedures
No State or local governmental agency or person shall weigh or state in any document the weight of grain determined at a location where official weighing is required to be performed as provided for in this section except in accordance with the procedures prescribed pursuant to this section.
(i) Unauthorized weighing prohibited
(1) In general
No State or local governmental agency or person other than an authorized employee of the Secretary shall perform official weighing or supervision of weighing for the purposes of this chapter except in accordance with the provisions of an unsuspended and unrevoked delegation of authority or designation by the Secretary as provided in this section or as otherwise provided in section 79(i) of this title and subsection (d).
(2) Geographic boundaries for official agencies
(A) In general
Subject to subparagraph (B), not more than one designated official agency referred to in paragraph (1) or State agency delegated authority pursuant to subsection (c)(2) to carry out the weighing provisions of this chapter shall be operative at the same time in any geographic area defined by the Secretary.
(B) Exceptions
If the Secretary determines that the presence of more than one designated official agency in the same geographic area will not undermine the policy stated in section 74 of this title, the Secretary shall allow a designated official agency to cross boundary lines to carry out weighing in another geographic area if—
(i) the current designated official agency for that geographic area is unable to provide weighing services in a timely manner;
(ii) a person requesting weighing services in that geographic area has not been receiving official weighing services from the current designated official agency for that geographic area; or
(iii) the current official agency for that geographic area agrees in writing with the adjacent official agency to waive the current geographic area restriction at the request of the applicant for service.
(C) Restoration of certain exceptions
(i) Definition of eligible grain handling facility
In this subparagraph, the term "eligible grain handling facility" means a grain handling facility that—
(I) was granted an exception under the final rule entitled "Exceptions to Geographic Areas for Official Agencies Under the USGSA" (68 Fed. Reg. 19137 (April 18, 2003)); and
(II) had that exception revoked between September 30, 2015 and December 20, 2018.
(ii) Restoration of exceptions
Within 90 days of notification from an eligible grain handling facility, the Secretary shall restore an exception described in clause (i)(I) with an official agency if—
(I) the eligible grain handling facility and the former excepted official agency agree to restore that exception; and
(II) the eligible grain handling facility notifies the Secretary of the preferred date for restoration of the exception within 90 days of December 20, 2018.
(j) Authority under United States Warehouse Act not limited
The provisions of this section shall not limit any authority vested in the Secretary under the United States Warehouse Act (39 Stat. 486, as amended; 7 U.S.C. 241 et seq.).
(k) Access to elevators, warehouses, or their storage or handling facilities
The representatives of the Secretary shall be afforded access to any elevator, warehouse, or other storage or handling facility from which grain is delivered for shipment in interstate or foreign commerce or to which grain is delivered from shipment in interstate or foreign commerce and all facilities therein for weighing grain.
(l) Fees
(1)
(A)
(B)
(C)
(D)
(2) Each agency to which authority has been delegated under this section and each agency or other person which has been designated to perform functions related to weighing under this section shall pay to the Secretary fees in such amount as the Secretary determines fair and reasonable and as will cover the costs incurred by the Secretary relating to supervision of the agency personnel and supervision by the Secretary of the Secretary's field office personnel incurred as a result of the functions performed by such agencies, except costs incurred under sections 79(g)(3), 85, 86, and 87c of this title. The fees shall be payable after the services are performed at such times as specified by the Secretary and shall be deposited in the fund created in section 79(j) of this title. Failure to pay the fee within thirty days after it is due shall result in automatic termination of the delegation or designation, which shall be reinstated upon payment, within such period as specified by the Secretary, of the fee currently due plus interest and any further expenses incurred by the Secretary because of such termination. The interest rate on overdue fees shall be as prescribed by the Secretary, but not less than the current average market yield on outstanding marketable obligations of the United States of comparable maturity, plus an additional charge of not to exceed 1 per centum per annum as determined by the Secretary, and adjusted to the nearest one-eighth of 1 per centum.
(3)
(4) The authority provided to the Secretary by paragraph (1) and the duties imposed by paragraph (2) on agencies and other persons described in such paragraph shall expire on September 30, 2025. After that date, the Secretary shall, under such regulations as the Secretary may prescribe, charge and collect reasonable fees to cover the estimated costs of official weighing and supervision of weighing except when the official weighing or supervision of weighing is performed by a designated official agency or by a State under a delegation of authority. The fees authorized by this paragraph shall, as nearly as practicable, cover the costs of the Secretary incident to its performance of official weighing and supervision of weighing services in the United States and on United States grain in Canadian ports, excluding administrative and supervisory costs. The fees authorized by this paragraph shall be deposited into a fund which shall be available without fiscal year limitation for the expenses of the Secretary incident to providing services under this chapter.
(Aug. 11, 1916, ch. 313, pt. B, §7A, as added Pub. L. 94–582, §9, Oct. 21, 1976, 90 Stat. 2875; amended Pub. L. 95–113, title XVI, §§1602(b), 1604(e), 1606(e), Sept. 29, 1977, 91 Stat. 1025, 1027, 1030; Pub. L. 97–35, title I, §155(2), Aug. 13, 1981, 95 Stat. 371; Pub. L. 100–518, §2(2), Oct. 24, 1988, 102 Stat. 2585; Pub. L. 103–156, §§4(b), 5(b), 12(e), 14(b), Nov. 24, 1993, 107 Stat. 1526, 1528, 1530; Pub. L. 103–354, title II, §293(a)(4), (7), (8), Oct. 13, 1994, 108 Stat. 3237; Pub. L. 106–472, title I, §§102(b), 103(b), Nov. 9, 2000, 114 Stat. 2059, 2060; Pub. L. 109–83, §1(a), Sept. 30, 2005, 119 Stat. 2053; Pub. L. 114–54, title III, §301(b)(3)(B), (c), Sept. 30, 2015, 129 Stat. 518, 519; Pub. L. 115–334, title XII, §12610(b), Dec. 20, 2018, 132 Stat. 5012; Pub. L. 116–216, §3, Dec. 11, 2020, 134 Stat. 1048.)
Editorial Notes
References in Text
The United States Warehouse Act, referred to in subsec. (j), is part C of act Aug. 11, 1916, ch. 313, 39 Stat. 486, which is classified generally to chapter 10 (§241 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 241 of this title and Tables.
Amendments
2020—Subsec. (l)(4). Pub. L. 116–216, in first sentence, substituted "2025" for "2020".
2018—Subsec. (i)(2). Pub. L. 115–334 inserted subpar. (A) designation and heading before "Not more" and subpar. (B) designation and heading before "the Secretary determines" in introductory provisions, substituted "Subject to subparagraph (B), not more" for "Not more" and "Secretary." for "Secretary, except that, if" in subpar. (A) and "If the Secretary determines" for "the Secretary determines" in subpar. (B), redesignated former subpars. (A) and (B) as cls. (i) and (iii), respectively, of subpar. (B), struck out "or" at end of cl. (i) of subpar. (B), added cl. (ii) of subpar. (B) and subpar. (C), and realigned margins.
2015—Subsec. (c)(2). Pub. L. 114–54, §301(c)(1), substituted "subsections (e) and (g) of section 79" for "subsection (g) of section 79".
Subsec. (i)(2). Pub. L. 114–54, §301(b)(3)(B), in introductory provisions, substituted "the Secretary shall allow a designated official agency to cross boundary lines to carry out weighing in another geographic area if—" for "the Secretary may—", added subpars. (A) and (B), and struck out former subpars. (A) and (B) which related to more than one designated official agency providing weighing in the same geographic area and a designated official agency crossing boundary lines to provide weighing in another geographic area.
Subsec. (l). Pub. L. 114–54, §301(c)(2)(A), inserted heading.
Subsec. (l)(1). Pub. L. 114–54, §301(c)(2)(A), (B), inserted heading, designated first to third sentences as subpars. (A) to (C), respectively, and inserted subpar. headings, in subpar. (C), substituted "Fees described in this paragraph" for "Such fees", and added subpar. (D).
Subsec. (l)(3). Pub. L. 114–54, §301(c)(2)(D), added par. (3). Former par. (3) redesignated (4).
Subsec. (l)(4). Pub. L. 114–54, §301(c)(2)(C), (E), redesignated par. (3) as (4) and substituted "2020" for "2015".
2005—Subsec. (l)(3). Pub. L. 109–83 substituted "2015" for "2005".
2000—Subsec. (i). Pub. L. 106–472, §102(b), inserted subsec. heading, designated existing provisions as par. (1), inserted par. heading, struck out second sentence, which prohibited more than one official agency or State delegated authority from operating at one time in any geographic area except as permitted in pilot programs, and added par. (2).
Subsec. (l)(3). Pub. L. 106–472, §103(b), substituted "2005" for "2000" in first sentence.
1994—Pub. L. 103–354 substituted "supervision by the Secretary of the Secretary's field office personnel" for "supervision by Service personnel of its field office personnel" in first sentence of subsec. (l)(2) and substituted "Secretary" for "Administrator" and "Service" wherever appearing in subsecs. (a) to (f) and (i) to (l).
1993—Subsec. (c)(2). Pub. L. 103–156, §4(b)(1), in second sentence, substituted " 'official weighing' or 'supervision of weighing' " for " 'supervision of weighing' ".
Subsec. (d). Pub. L. 103–156, §4(b)(2), inserted before period at end of second sentence "or as otherwise provided by agreement with the Canadian Government".
Subsec. (e). Pub. L. 103–156, §12(e), which directed amendment of "Section 7A(e)" by substituting "regulations as the Administrator" for "regulations as he", without specifying the name of the Act being amended, was executed to this section, which is section 7A of the United States Grain Standards Act, to reflect the probable intent of Congress.
Subsec. (i). Pub. L. 103–156, §§4(b)(3), 5(b), inserted before period at end of first sentence "or as otherwise provided in section 79(i) of this title and subsection (d) of this section" and inserted before period at end of second sentence ", except that the Administrator may conduct pilot programs to allow more than 1 official agency to carry out the weighing provisions within a single geographic area without undermining the policy stated in section 74 of this title".
Subsec. (l)(3). Pub. L. 103–156, §14(b), added par. (3).
1988—Subsec. (l). Pub. L. 100–518 amended subsec. (l) generally, substituting "cover the costs of the Service" for "cover the costs of the service" in par. (1).
1981—Subsec. (l). Pub. L. 97–35 temporarily designated existing provisions as par. (1), made changes in nomenclature, provided for inclusion, rather than exclusion, of administrative and supervisory costs, and struck out provisions respecting availability of deposited funds, and added par. (2). See Effective and Termination Dates of 1981 Amendment note below.
1977—Subsec. (a). Pub. L. 95–113, §1606(e), substituted "standards or procedures" for "standards".
Subsec. (b). Pub. L. 95–113, §§1604(e)(1), 1606(e), substituted "The Administrator is authorized to cause official weighing or supervision of weighing under standards or procedures" for "The Administrator is authorized to cause supervision of weighing under standards" and "other than at export elevators at export port locations" for "other than at export port locations".
Subsec. (c)(2). Pub. L. 95–113, §1604(e)(2), made technical amendments to conform par. (2) to increased authority granted in subsec. (b) to cause official weighing as well as supervision of weighing at interior inspection points and corrected a typographical error in which "number" had been erroneously used for "under" in text as originally enacted by Pub. L. 94–582.
Subsec. (d). Pub. L. 95–113, §1604(e)(3), inserted requirement that all or specified functions of Canadian weighing be performed by official inspection personnel employed by the Service or, except for appeals, by persons operating under a contract with the Service.
Subsec. (e). Pub. L. 95–113, §§1604(e)(4), 1606(e), substituted "under standards or procedures provided" for "under standards provided" and struck out provisions which had required that the weighing service not be provided for periods of less than a year, that the fees therefor be set separately from the fees provided for in subsec. (l), and that they be reasonable, nondiscriminatory, and equal, as nearly as possible, to the cost of providing the service.
Subsec. (f)(2). Pub. L. 95–113, §1604(e)(5)(A), substituted "permit only competent persons with a reputation for honesty and integrity and who are approved by the Administrator" for "employ only competent persons with a reputation for honesty and integrity".
Subsec. (f)(3). Pub. L. 95–113, §1604(e)(5)(B), substituted "when weighing is to be done by persons other than official inspection personnel, will require such persons to operate the scales" for "when weighing is to be done by employees of the facility, will require employees to operate the scales".
Subsec. (g). Pub. L. 95–113, §1604(e)(6), substituted "official weighing or supervision of weighing" for "official weighing".
Subsec. (i). Pub. L. 95–113, §1604(e)(7), (8), substituted "No State or local governmental agency" for "No State" and inserted provision that not more than one official agency or State delegated authority pursuant to subsection (c)(2) of this section for carrying out the weighing provisions of this chapter be operative at one time for any geographic area as determined by the Administrator to effectuate the objectives stated in section 74 of this title.
Subsec. (l). Pub. L. 95–113, §1602(b), revised provisions relating to fees so as to remove requirement that field supervision of weighing be supported by fees.
Statutory Notes and Related Subsidiaries
Effective Date of 2000 Amendment
Amendment by section 103(b) of Pub. L. 106–472 effective as if enacted Sept. 30, 2000, see section 111 of Pub. L. 106–472, set out as a note under section 79 of this title.
Effective and Termination Dates of 1988 Amendment
That part of section 2 of Pub. L. 100–518 which provided that the amendment made by Pub. L. 100–518 was effective for period Oct. 1, 1988, through Sept. 30, 1993, inclusive, was repealed by Pub. L. 103–156, §§13(a), 16(b), Nov. 24, 1993, 107 Stat. 1529, 1530, eff. Sept. 30, 1993.
Effective and Termination Dates of 1981 Amendment
Pub. L. 97–35, title I, §155, Aug. 13, 1981, 95 Stat. 371, as amended by Pub. L. 98–469, §1, Oct. 11, 1984, 98 Stat. 1831, provided that the amendment made by Pub. L. 97–35 is effective for period beginning Oct. 1, 1981, and ending Sept. 30, 1988.
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date
Section effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as an Effective Date of 1976 Amendment note under section 74 of this title.
1 So in original. Probably should be "the Secretary's".
§79b. Testing of equipment
(a) Random and periodic testing at least annually; fees
The Secretary shall provide for the testing of all equipment used in the sampling, grading, inspection, and weighing for the purpose of official inspection, official weighing, or supervision of weighing of grain located at all grain elevators, warehouses, or other storage or handling facilities at which official inspection or weighing services are provided under this chapter, to be made on a random and periodic basis, under such regulations as the Secretary may prescribe, as the Secretary deems necessary to assure the accuracy and integrity of such equipment. Such regulations shall provide for the charging and collection of reasonable fees to cover the estimated costs to the Secretary incident to the performance of such testing by employees of the Secretary. Such fees shall be deposited into the fund created by section 79(j) of this title.
(b) Personnel to conduct testing
The Secretary is authorized to cause such testing provided for in subsection (a) to be performed (1) by personnel employed by the Secretary, or (2) by States, political subdivisions thereof, or persons under the supervision of the Secretary, under such regulations as the Secretary may prescribe.
(c) Use of non-approved equipment prohibited
Notwithstanding any other provision of law, no person shall use for the purposes of this chapter any such equipment not approved by the Secretary.
(Aug. 11, 1916, ch. 313, pt. B, §7B, as added Pub. L. 94–582, §9, Oct. 21, 1976, 90 Stat. 2877; amended Pub. L. 95–113, title XVI, §1604(f), Sept. 29, 1977, 91 Stat. 1028; Pub. L. 103–156, §12(f), Nov. 24, 1993, 107 Stat. 1528; Pub. L. 103–354, title II, §293(a)(7), (8), Oct. 13, 1994, 108 Stat. 3237; Pub. L. 106–472, title I, §104, Nov. 9, 2000, 114 Stat. 2060.)
Editorial Notes
Amendments
2000—Subsec. (a). Pub. L. 106–472 struck out "but at least annually and" before "under such regulations" in first sentence.
1994—Pub. L. 103–354 substituted "Secretary" for "Administrator" and "Service" wherever appearing.
1993—Subsec. (a). Pub. L. 103–156, which directed amendment of "Section 7B(a)" by substituting "as the Administrator deems necessary" for "as he deems necessary", without specifying the name of the Act being amended, was executed to this section, which is section 7B of the United States Grain Standards Act, to reflect the probable intent of Congress.
1977—Subsec. (a). Pub. L. 95–113, §1604(f)(1), (2), substituted "and weighing for the purpose of official inspection, official weighing, or supervision of weighing of grain located at all grain elevators" for "and weighing of grain located at all grain elevators" and inserted provisions that regulations provide for the charging and collection of reasonable fees to cover the estimated costs to the Service incident to the performance of testing by employees of the Service and that the fees be deposited into the fund created by section 79(j) of this title.
Subsec. (c). Pub. L. 95–113, §1604(f)(3), substituted "shall use for the purposes of this chapter" for "shall use".
Statutory Notes and Related Subsidiaries
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date
Section effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as an Effective Date of 1976 Amendment note under section 74 of this title.
§79c. Omitted
Editorial Notes
Codification
Section, act Aug. 11, 1916, ch. 313, pt. B, §7C, as added Aug. 13, 1981, Pub. L. 97–35, title I, §155(3), 95 Stat. 372; amended Oct. 11, 1984, Pub. L. 98–469, §2(2), 98 Stat. 1831, which limited the total administrative and supervisory costs which could be incurred under this chapter for fiscal years 1982 through 1988, was effective for the period Oct. 1, 1981, through Sept. 30, 1988, pursuant to section 155 of Pub. L. 97–35, as amended. See section 79d of this title.
§79d. Limitation on administrative and supervisory costs
The total administrative and supervisory costs which may be incurred under this chapter for services performed (excluding standardization, compliance, and foreign monitoring activities) for each of the fiscal years 1989 through 2025 shall not exceed 30 percent of the total costs for such activities carried out by the Secretary for such year.
(Aug. 11, 1916, ch. 313, pt. B, §7D, as added Pub. L. 100–518, §2(3), Oct. 24, 1988, 102 Stat. 2585; amended Pub. L. 103–156, §2, Nov. 24, 1993, 107 Stat. 1525; Pub. L. 103–354, title II, §293(a)(8), Oct. 13, 1994, 108 Stat. 3237; Pub. L. 106–472, title I, §105, Nov. 9, 2000, 114 Stat. 2060; Pub. L. 109–83, §1(a), Sept. 30, 2005, 119 Stat. 2053; Pub. L. 114–54, title III, §301(d), Sept. 30, 2015, 129 Stat. 520; Pub. L. 116–216, §4, Dec. 11, 2020, 134 Stat. 1048.)
Editorial Notes
Amendments
2020—Pub. L. 116–216 substituted "2025" for "2020".
2015—Pub. L. 114–54 substituted "2020" for "2015".
2005—Pub. L. 109–83 substituted "2015" for "2005".
2000—Pub. L. 106–472 substituted "2005" for "2000" and "30 percent" for "40 per centum".
1994—Pub. L. 103–354 substituted "Secretary" for "Service".
1993—Pub. L. 103–156 substituted "services performed" for "inspection and weighing" and "2000" for "1993".
Statutory Notes and Related Subsidiaries
Effective Date of 2000 Amendment
Amendment by Pub. L. 106–472 effective as if enacted Sept. 30, 2000, see section 111 of Pub. L. 106–472, set out as a note under section 79 of this title.
Effective Date of 1993 Amendment
Amendment by Pub. L. 103–156 effective as of Sept. 30, 1993, see section 16(b) of Pub. L. 103–156, set out as a note under section 75 of this title.
Effective and Termination Dates
That part of section 2 of Pub. L. 100–518 which provided that section was effective for the period Oct. 1, 1988, through Sept. 30, 1993, inclusive, was repealed by Pub. L. 103–156, §§13(a), 16(b), Nov. 24, 1993, 107 Stat. 1529, 1530, eff. Sept. 30, 1993.
§§80 to 83. Omitted
Editorial Notes
Codification
Sections were omitted in the general reorganization of this chapter by Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 761.
Section 80, act Aug. 11, 1916, ch. 313, pt. B, §7 (part), 39 Stat. 484, provided for revocation and suspension of licenses issued by the Secretary of Agriculture. See section 85 of this title.
Section 81, act Aug. 11, 1916, ch. 313, pt. B, §7 (part), 39 Stat. 484, prohibited the existence of an interest, financial or otherwise, direct or indirect, on the part of inspectors in grain elevators or warehouses or in the merchandising of grain. See section 87 of this title.
Section 82, act Aug. 11, 1916, ch. 313, pt. B, §7 (part), 39 Stat. 484, required maintenance of records and reports by inspectors. See section 87a of this title.
Section 83, act Aug. 11, 1916, ch. 313, pt. B, §7 (part), 39 Stat. 484, called for a semiannual report by the Secretary of Agriculture on the delivery of grain in the nation.
§84. Licensing of inspectors
(a) Authorization
The Secretary is authorized (1) to issue a license to any individual upon presentation to the Secretary of satisfactory evidence that such individual is competent, and is employed (or is supervised under a contractual arrangement) by an official agency or a State agency delegated authority under section 79 or 79a of this title, to perform all or specified functions involved in original inspection or reinspection functions involved in official inspection, or in the official weighing or the supervision of weighing, other than appeal weighing, of grain in the United States; (2) to authorize any competent employee of the Secretary to (A) perform all or specified original inspection, reinspection, or appeal inspection functions involved in official inspection of grain in the United States, or of United States grain in Canadian ports, (B) perform official weighing or supervision of weighing (including appeal weighing) of grain in the United States, or of United States grain in Canadian ports, (C) supervise the official inspection, official weighing, or supervision of weighing of grain in the United States and of United States grain in Canadian ports or the testing of equipment, and (D) perform monitoring activities in foreign ports with respect to grain officially inspected and officially weighed under this chapter; (3) to contract with any person or governmental agency to perform specified sampling, laboratory testing, inspection, weighing, and similar technical functions and to license competent persons to perform such functions pursuant to such contract; and (4) to contract with any competent person for the performance of monitoring activities in foreign ports with respect to grain officially inspected and officially weighed under this chapter. Except as otherwise provided in sections 79(i) and 79a(d) of this title, no person shall perform any official inspection or weighing function for purposes of this chapter unless such person holds an unsuspended and unrevoked license or authorization from the Secretary under this chapter.
(b) Duration of licenses; suspension; reinstatement
All classes of licenses issued under this chapter shall terminate every 5 years on a date or dates to be fixed by regulation of the Secretary: Provided, That any license shall be suspended automatically when the licensee ceases to be employed by an official agency or by a State agency under a delegation of authority pursuant to this chapter or to operate under the terms of a contract for the conduct of any functions under this chapter: Provided further, That subject to subsection (c) of this section such license shall be reinstated if the licensee is employed by an official agency or by a State agency under a delegation of authority pursuant to this chapter or resumes operation under such a contract within one year of the suspension date and the license has not expired in the interim.
(c) Examination of applicants; reexaminations
The Secretary may require such examinations and reexaminations as the Secretary may deem warranted to determine the competence of any applicants for licenses, licensees, or employees of the Secretary, to perform any official inspection or weighing function under this chapter.
(d) Inspectors performing under contract not deemed Federal employees
Persons employed or supervised under a contractual arrangement by an official agency (including persons employed or supervised under a contractual arrangement by a State agency under a delegation of authority pursuant to this chapter) and persons performing official inspection functions under contract with the Secretary shall not, unless otherwise employed by the Federal Government, be determined to be employees of the Federal Government of the United States: Provided, That such persons shall be considered in the performance of any official inspection, official weighing, or supervision of weighing function as prescribed by this chapter or by the rules and regulations of the Secretary, as persons acting for or on behalf of the United States, for the purpose of determining the application of section 201 of title 18, to such persons and as employees of the Department of Agriculture assigned to perform inspection functions for the purposes of sections 1114 and 111 of title 18.
(e) Hiring of official inspection personnel and supervisory personnel without regard to laws governing appointments to the competitive service
The Secretary may hire (without regard to the provisions of title 5 governing appointments in the competitive service) as official inspection personnel any individual who is licensed (on October 21, 1976) to perform functions of official inspection under this chapter and as personnel to perform supervisory weighing or official weighing functions any individual who, on October 21, 1976, was performing similar functions: Provided, That the Secretary determines that such individual is of good moral character and is technically and professionally qualified for the duties to which the individual will be assigned. The Secretary may compensate such personnel at any rate within the appropriate grade of the General Schedule as the Secretary deems necessary without regard to section 5333 of title 5.
(f) Periodic rotation of personnel
The Secretary shall provide for the periodic rotation of supervisory personnel and official inspection personnel employed by the Secretary as the Secretary deems necessary to preserve the integrity of the official inspection and weighing system provided by this chapter.
(g) Recruitment, training, and supervision of personnel; work production standards; exemption for certain personnel
The Secretary shall develop and effectuate standards for the recruiting, training, and supervising of official inspection personnel and appropriate work production standards for such personnel, which shall be applicable to the Secretary, all State agencies under delegation of authority pursuant to this chapter, and all official agencies and all persons licensed or authorized to perform functions under this chapter: Provided, That persons licensed or authorized on October 21, 1976, to perform any official function under this chapter, shall be exempted from the uniform recruiting and training provisions of this subsection and regulations or standards issued pursuant thereto if the Secretary determines that such persons are technically and professionally qualified for the duties to which they will be assigned and they agree to complete whatever additional training the Secretary deems necessary.
(Aug. 11, 1916, ch. 313, pt. B, §8, 39 Stat. 485; Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 764; Pub. L. 94–582, §10, Oct. 21, 1976, 90 Stat. 2877; Pub. L. 95–113, title XVI, §§1604(g), 1606(f), Sept. 29, 1977, 91 Stat. 1028, 1030; Pub. L. 103–156, §§6, 12(g), Nov. 24, 1993, 107 Stat. 1526, 1528; Pub. L. 103–354, title II, §293(a)(7), (8), Oct. 13, 1994, 108 Stat. 3237; Pub. L. 106–472, title I, §106, Nov. 9, 2000, 114 Stat. 2060; Pub. L. 114–54, title III, §301(e), Sept. 30, 2015, 129 Stat. 520.)
Editorial Notes
References in Text
The General Schedule, referred to in subsec. (e), is set out under section 5332 of Title 5.
Amendments
2015—Subsec. (b). Pub. L. 114–54 substituted "every 5 years" for "triennially".
2000—Subsec. (a)(3). Pub. L. 106–472 inserted "inspection, weighing," after "laboratory testing,".
1994—Pub. L. 103–354 substituted "Secretary" for "Administrator" and "Service" wherever appearing.
1993—Pub. L. 103–156, §12(g), which directed amendment of "Section 8", without specifying the name of the Act being amended, was executed to this section, which is section 8 of the United States Grain Standards Act, to reflect the probable intent of Congress.
Subsec. (a). Pub. L. 103–156, §§6(1), 12(g)(1), in cl. (1), substituted "presentation to the Administrator" for "presentation to him" and inserted "(or is supervised under a contractual arrangement)" after "and is employed", and in second sentence, substituted "Except as otherwise provided in sections 79(i) and 79a(d) of this title, no person" for "No person".
Subsec. (b). Pub. L. 103–156, §6(2), substituted "under the terms of a contract for the conduct of any functions" for "independently under the terms of a contract for the conduct of any functions involved in official inspection".
Subsec. (c). Pub. L. 103–156, §12(g)(2), substituted "the Administrator" for "he".
Subsec. (d). Pub. L. 103–156, §6(3), inserted "or supervised under a contractual arrangement" after "Persons employed" and after "including persons employed".
Subsec. (f). Pub. L. 103–156, §12(g)(2), substituted "the Administrator" for "he".
1977—Subsec. (a)(1). Pub. L. 95–113, §1604(g)(1)(A), substituted "weighing, other than appeal weighing, of grain" for "weighing of grain".
Subsec. (a)(2)(B). Pub. L. 95–113, §1604(g)(1)(B), substituted "weighing (including appeal weighing) of grain in the United States, or of United States grain in Canadian ports" for "weighing of grain".
Subsec. (a)(3). Pub. L. 95–113, §1604(g)(1)(C), substituted "any person or governmental agency specified sampling, laboratory testing, and similar technical functions" for "any person to perform specified sampling and laboratory testing".
Subsec. (e). Pub. L. 95–113, §1604(g)(2), inserted provisions authorizing the Administrator to compensate the personnel at any rate within the appropriate grade of the General Schedule as the Administrator deems necessary without regard to section 5333 of title 5.
Subsec. (f). Pub. L. 95–113, §1606(f), substituted "official inspection and weighing system" for "official inspection system".
1976—Subsec. (a). Pub. L. 94–582 substituted "Administrator" for "Secretary" in two places; designated existing provisions as item (1) and substituted "official agency or a State agency delegated authority under section 79 or 79a of this title, to perform all or specified functions involved in original inspection or reinspection functions involved in official inspection, or in the official weighing or the supervision of weighing of grain in the United States" for "official inspection agency to perform all or specified functions involved in official inspection"; substituted provisions designated as item (2) for "to authorize any competent employee of the Department of Agriculture to perform all or specified functions involved in supervisory or appeal inspection or initial inspection of United States grain in Canadian ports"; inserted items (3) and (4); struck out authorization to license any competent individual to perform specified functions involved in official inspection under a contract with the Department of Agriculture; and conditioned performance of any official weighing function on the holding of a license or authorization.
Subsec. (b). Pub. L. 94–582 substituted "Administrator" for "Secretary", "official agency" for "official inspection agency" in two places, and "subsection (c)" for "paragraph (c)", and inserted provision respecting employment of licensee by a State agency under a delegation of authority pursuant to this chapter in two places.
Subsec. (c). Pub. L. 94–582 substituted "Administrator" for "Secretary" and "Service" for "Department of Agriculture" and included performance of weighing function.
Subsec. (d). Pub. L. 94–582 substituted "official agency (including persons employed by a State agency under a delegation of authority pursuant to this chapter)" for "official inspection agency" and "contract with the Service" for "contracts with the Department of Agriculture" and inserted provision respecting status as persons acting for or on behalf of the United States in application of sections 118, 201, and 1114 of Title 18.
Subsecs. (e) to (g). Pub. L. 94–582 added subsecs. (e) to (g).
1968—Pub. L. 90–487 substituted provisions for the licensing and examination and reexamination of inspectors for provisions authorizing the Secretary of Agriculture to promulgate rules and regulations.
Statutory Notes and Related Subsidiaries
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date of 1976 Amendment
Amendment by Pub. L. 94–582 effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as a note under section 74 of this title.
Effective Date of 1968 Amendment
For effective date of amendment by Pub. L. 90–487, see section 2 of Pub. L. 90–487, set out as a note under section 78 of this title.
§85. Suspension, revocation, and refusal to renew licenses; hearing; grounds; temporary suspension
The Secretary may refuse to renew, or may suspend or revoke, any license issued under this chapter whenever, after the licensee has been afforded an opportunity for a hearing, the Secretary shall determine that such licensee is incompetent, or has inspected or weighed or supervised the weighing of grain for purposes of this chapter, by any standard or criteria other than as provided for in this chapter, or has issued, or caused the issuance of, any false or incorrect official certificate or other official form, or has knowingly or carelessly inspected or weighed or supervised the weighing of grain improperly under this chapter, or has accepted any money or other consideration, directly or indirectly, for any neglect or improper performance of duty, or has used the license or allowed it to be used for any improper purpose, or has otherwise violated any provision of this chapter or of the regulations prescribed or instructions issued to the licensee by the Secretary under this chapter. The Secretary may, without first affording the licensee an opportunity for a hearing, suspend any license temporarily pending final determination whenever the Secretary deems such action to be in the best interests of the official inspection system under this chapter. The Secretary may summarily revoke any license whenever the licensee has been convicted of any offense prohibited by section 87b of this title or convicted of any offense proscribed by title 18, with respect to performance of functions under this chapter.
(Aug. 11, 1916, ch. 313, pt. B, §9, 39 Stat. 485; Aug. 1, 1956, ch. 812, 70 Stat. 780; Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 765; Pub. L. 94–582, §11, Oct. 21, 1976, 90 Stat. 2879; Pub. L. 103–156, §12(h), Nov. 24, 1993, 107 Stat. 1528; Pub. L. 103–354, title II, §293(a)(7), Oct. 13, 1994, 108 Stat. 3237.)
Editorial Notes
Amendments
1994—Pub. L. 103–354 substituted "Secretary" for "Administrator" wherever appearing.
1993—Pub. L. 103–156, which directed amendment of "Section 9" by substituting "or has used the license" for "or has used his license" and "instructions issued to the licensee" for "instructions issued to him", without specifying the name of the Act being amended, was executed to this section, which is section 9 of the United States Grain Standards Act, to reflect the probable intent of Congress.
1976—Pub. L. 94–582 substituted "Administrator" for "Secretary" wherever appearing and "inspected or weighed or supervised the weighing of" for "inspected" in two places and authorized summary revocation of licenses based on conviction of prescribed offenses.
1968—Pub. L. 90–487 substituted provisions authorizing the suspension, revocation, and refusal of renewal of licenses by the Secretary, for provisions setting out the penalties for violations of this chapter.
1956—Act Aug. 1, 1956, provided penalties for persons who knowingly sample grain improperly and for persons who knowingly or willfully cause or attempt to cause the issuance of a false grade certificate by deceptive loading, handling, or sampling of grain, or any other means.
Statutory Notes and Related Subsidiaries
Effective Date of 1976 Amendment
Amendment by Pub. L. 94–582 effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as a note under section 74 of this title.
Effective Date of 1968 Amendment
For effective date of amendment by Pub. L. 90–487, see section 2 of Pub. L. 90–487, set out as a note under section 78 of this title.
§86. Refusal of inspection and weighing services; civil penalties
(a) Grounds for refusal of services
The Secretary may (for such period, or indefinitely, as the Secretary deems necessary to effectuate the purposes of this chapter) refuse to provide official inspection or the services related to weighing otherwise available under this chapter with respect to any grain offered for such services, or owned, wholly or in part, by any person if the Secretary determines (1) that the individual (or in case such person is a partnership, any general partner; or in case such person is a corporation, any officer, director, or holder or owner of more than 10 per centum of the voting stock; or in case such person is an unincorporated association or other business entity, any officer or director thereof; or in case of any such business entity, any individual who is otherwise responsibly connected with the business) has knowingly committed any violation of section 87b of this title, or has been convicted of any violation of other Federal law with respect to the handling, weighing, or official inspection of grain, or that official inspection or the services related to weighing have been refused for any of the above-specified causes (for a period which has not expired) to such person, or any other person conducting a business with which the former was, at the time such cause existed, or is responsibly connected; and (2) that providing such service with respect to such grain would be inimical to the integrity of the service.
(b) Persons responsibly connected with a business
For purposes of subsection (a) of this section, a person shall be deemed to be responsibly connected with a business if the person was or is a partner, officer, director, or holder or owner of 10 per centum or more of its voting stock, or an employee in a managerial or executive capacity.
(c) Civil penalties
In addition to, or in lieu of, penalties provided under section 87c of this title, or in addition to, or in lieu of, refusal of official inspection or services related to weighing in accordance with this section, the Secretary may assess against any person who has knowingly committed any violation of section 87b of this title or has been convicted of any violation of other Federal law with respect to the handling, weighing, or official inspection of grain a civil penalty not to exceed $75,000 for each such violation as the Secretary determines is appropriate to effectuate the objectives stated in section 74 of this title.
(d) Opportunity for hearing; temporary refusal without hearing pending final determination
Before official inspection or services related to weighing is refused to any person or a civil penalty is assessed against any person under this section, such person shall be afforded opportunity for a hearing in accordance with sections 554, 556, and 557 of title 5: Provided, That the Secretary may, without first affording the person a hearing, refuse official inspection or services related to weighing temporarily pending final determination whenever the Secretary has reason to believe there is cause for refusal of inspection or services related to weighing and considered such action to be in the best interest of the official inspection system under this chapter. The Secretary shall afford such person an opportunity for a hearing within seven days after temporarily refusing official inspection or services related to weighing; and such hearing and ancillary procedures related thereto shall be conducted in an expedited manner.
(e) Collection and disposition of civil penalties
Moneys received in payment of such civil penalties shall be deposited in the general fund of the United States Treasury. Upon any failure to pay the penalties assessed under this section, the Secretary may request the Attorney General of the United States to institute a civil action to collect the penalties in the appropriate court identified in subsection (h) of section 87f of this title for the jurisdiction in which the respondent is found or resides or transacts business, and such court shall have jurisdiction to hear and decide any such action.
(Aug. 11, 1916, ch. 313, pt. B, §10, 39 Stat. 485; Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 765; Pub. L. 94–582, §12, Oct. 21, 1976, 90 Stat. 2879; Pub. L. 103–156, §12(i), Nov. 24, 1993, 107 Stat. 1528; Pub. L. 103–354, title II, §293(a)(7), Oct. 13, 1994, 108 Stat. 3237.)
Editorial Notes
Amendments
1994—Subsecs. (a), (c) to (e). Pub. L. 103–354 substituted "Secretary" for "Administrator" wherever appearing.
1993—Pub. L. 103–156, §12(i), which directed amendment of "Section 10", without specifying the name of the Act being amended, was executed to this section, which is section 10 of the United States Grain Standards Act, to reflect the probable intent of Congress.
Subsec. (a). Pub. L. 103–156, §12(i)(1), substituted "the Administrator" for "he" in two places.
Subsec. (b). Pub. L. 103–156, §12(i)(2), substituted "the person" for "he".
1976—Subsec. (a). Pub. L. 94–582 substituted "Administrator" for "Secretary", "grain offered for such services" for "grain offered for inspection", "has knowingly committed any violation of section 87b of this title or has been convicted of any violation of other Federal law with respect to the handling, weighing, or official inspection of grain, or that official inspection or the services related to weighing have been refused" for "has been convicted of any violation of section 87b of this title, or that official inspection has been refused", and "integrity of the service" for "integrity of the official inspection service", and authorized refusal of provision of services relating to weighing.
Subsec. (c). Pub. L. 94–582 added subsec. (c). Former subsec. (c) redesignated (d).
Subsec. (d). Pub. L. 94–582 redesignated provisions of former subsec. (c) as (d), inserted "or services related to weighing" before "is refused", inserted "or a civil penalty is assessed against any person under this section" after "to any person", provided for the hearing under sections 554, 556, and 557 of title 5, and inserted provisions relating to temporary refusal without hearing pending final determination.
Subsec. (e). Pub. L. 94–582 added subsec. (e).
1968—Pub. L. 90–487 substituted provisions authorizing the Secretary to refuse official inspection and affording an opportunity for a hearing in such a case, for provisions setting the penalty for interference with the execution of official duties.
Statutory Notes and Related Subsidiaries
Effective Date of 1976 Amendment
Amendment by Pub. L. 94–582 effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as a note under section 74 of this title.
Effective Date of 1968 Amendment
For effective date of amendment by Pub. L. 90–487, see section 2 of Pub. L. 90–487, set out as a note under section 78 of this title.
§87. Conflicts of interest
(a) Prohibition with respect to persons licensed or authorized by Secretary to perform official functions
No person licensed or authorized by the Secretary to perform any official function under this chapter, or employed by the Secretary in otherwise carrying out any of the provisions of this chapter, shall, during the term of such license, authorization, or employment, (a) be financially interested (directly or otherwise) in any business entity owning or operating any grain elevator or warehouse or engaged in the merchandising of grain, or (b) be in the employment of, or accept gratuities from, any such entity, or (c) be engaged in any other kind of activity specified by regulation of the Secretary as involving a conflict of interest: Provided, however, That the Secretary may license qualified employees of any grain elevators or warehouses to perform official sampling functions, under such conditions as the Secretary may by regulation prescribe, and the Secretary may by regulation provide such other exceptions to the restrictions of this section as the Secretary determines are consistent with the purposes of this chapter.
(b) Prohibition with respect to personnel of official or State agencies and business or governmental entities related to such agencies; substantial stockholder; use of official inspection service; authority delegation; report to Congressional committees
(1) No official agency or a State agency delegated authority under this chapter, or any member, director, officer, or employee thereof, and no business or governmental entity related to any such agency, shall be employed in or otherwise engaged in, or directly or indirectly have any stock or other financial interest in, any business involving the commercial transportation, storage, merchandising, or other commercial handling of grain, or the use of official inspection service (except that in the case of a producer such use shall not be prohibited for grain in which the producer does not have an interest); and no business or governmental entity conducting any such business, or any member, director, officer, or employee thereof, and no other business or governmental entity related to any such entity, shall operate or be employed by or directly or indirectly have any stock or other financial interest in, any official agency or a State agency delegated inspection authority. Further, no substantial stockholder in any incorporated official agency shall be employed in or otherwise engaged in, or be a substantial stockholder in any corporation conducting any such business, or directly or indirectly have any other kind of financial interest in any such business; and no substantial stockholder in any corporation conducting such a business shall operate or be employed by or be a substantial stockholder in, or directly or indirectly have any other kind of financial interest in, any official agency.
(2) A substantial stockholder of a corporation shall be any person holding 2 per centum or more, or one hundred shares or more, of the voting stock of the corporation, whichever is the lesser interest. Any entity shall be considered to be related to another entity if it owns or controls, or is owned or controlled by, such other entity, or both entities are owned or controlled by another entity.
(3) Each State agency delegated official weighing authority under section 79a of this title and each State or local agency or other person designated by the Secretary under such section to perform official weighing or supervision of weighing shall be subject to the provisions of subsection (b) of this section. The term "use of official inspection service" shall be deemed to refer to the use of the services provided under such a delegation or designation.
(4) If a State or local governmental agency is delegated authority to perform official inspection or official weighing or supervision of weighing, or a State or local governmental agency is designated as an official agency, the Secretary shall specify the officials and other personnel thereof to which the conflict of interest provisions of this subsection (b) apply.
(5) Notwithstanding the foregoing provisions of this subsection, the Secretary may delegate authority to a State agency or designate a governmental agency, board of trade, chamber of commerce, or grain exchange to perform official inspection or perform official weighing or supervision of weighing except that for purposes of supervision of weighing only, the Secretary may also designate any other person, if the Secretary determines that any conflict of interest which may exist between the agency or person or any member, director, officer, employee, or stockholder thereof and any business involving the transportation, storage, merchandising, or other handling of grain or use of official inspection or weighing service is not such as to jeopardize the integrity or the effective and objective operation of the functions performed by such agency. Whenever the Secretary makes such a determination and makes a delegation or designation to an agency that has a conflict of interest otherwise prohibited by this subsection, the Secretary shall, within thirty days after making such a determination, submit a report to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate, detailing the factual bases for such determination.
(c) Official agencies or State agencies not prevented from engaging in business of weighing grain
The provisions of this section shall not prevent an official agency or State agency delegated authority under this chapter from engaging in the business of weighing grain.
(Aug. 11, 1916, ch. 313, pt. B, §11, 39 Stat. 485; Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 766; Pub. L. 94–582, §13, Oct. 21, 1976, 90 Stat. 2880; Pub. L. 95–113, title XVI, §§1604(h), 1606(g), Sept. 29, 1977, 91 Stat. 1028, 1030; Pub. L. 103–156, §12(j), Nov. 24, 1993, 107 Stat. 1529; Pub. L. 103–354, title II, §293(a)(7), Oct. 13, 1994, 108 Stat. 3237; Pub. L. 103–437, §4(a)(1), Nov. 2, 1994, 108 Stat. 4581.)
Editorial Notes
Amendments
1994—Subsecs. (a), (b). Pub. L. 103–354 substituted "Secretary" for "Administrator" wherever appearing.
Subsec. (b)(5). Pub. L. 103–437 substituted "Committee on Agriculture, Nutrition, and Forestry" for "Committee on Agriculture and Forestry".
1993—Pub. L. 103–156, §12(j), which directed amendment of "Section 11", without specifying the name of the Act being amended, was executed to this section, which is section 11 of the United States Grain Standards Act, to reflect the probable intent of Congress.
Subsec. (a). Pub. L. 103–156, §12(j)(1), substituted "the Administrator" for "he" before "determines".
Subsec. (b)(1). Pub. L. 103–156, §12(j)(2)(A), substituted "the producer" for "he".
Subsec. (b)(5). Pub. L. 103–156, §12(j)(2)(B), substituted "the Administrator" for "he" in two places.
1977—Subsec. (b)(3). Pub. L. 95–113, §1604(h)(1), substituted "to perform official weighing or supervision of weighing" for "to perform supervision of weighing".
Subsec. (b)(4). Pub. L. 95–113, §1606(g), substituted "official weighing or supervision of weighing" for "official weighing".
Subsec. (b)(5). Pub. L. 95–113, §1604(h)(2), substituted "to perform official inspection or perform official weighing or supervision of weighing except that" for "to perform official inspection or perform supervision of weighing except that" and "member, director, officer" for "member, officer".
Subsec. (c). Pub. L. 95–113, §1604(h)(3), inserted "or State agency delegated authority under this chapter" after "official agency".
1976—Subsec. (a). Pub. L. 94–582, §13(a)–(c), substituted "Administrator" for "Secretary" wherever appearing and "perform any official function" for "perform any official inspection function", and designated first paragraph provisions, as amended, as subsec. (a), respectively.
Subsecs. (b), (c). Pub. L. 94–582, §13(c), added subsecs. (b) and (c).
1968—Pub. L. 90–487 substituted provisions prohibiting a conflict of interest on the part of inspectors who are interested financially in a grain elevator or in grain merchandising, for provisions covering the separability of provisions of this chapter.
Statutory Notes and Related Subsidiaries
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date of 1976 Amendment
Amendment by Pub. L. 94–582 effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as a note under section 74 of this title.
Effective Date of 1968 Amendment
For effective date of amendment by Pub. L. 90–487, see section 2 of Pub. L. 90–487, set out as a note under section 78 of this title.
§87a. Records
(a) Samples of grain
Every official agency, every State agency delegated authority under this chapter, and every person licensed to perform any official inspection or official weighing or supervision of weighing function under this chapter shall maintain such samples of officially inspected grain and such other records as the Secretary may by regulation prescribe for the purpose of administration and enforcement of this chapter.
(b) Period of maintenance
Every official agency, every State agency delegated authority under this chapter, and every person licensed to perform any official inspection or official weighing or supervision of weighing function under this chapter required to maintain records under this section shall keep such records for a period of five years after the inspection, weighing, or transaction, which is the subject of the record, occurred: Provided, That grain samples shall be required to be maintained only for such period not in excess of ninety days as the Secretary, after consultation with the grain trade and taking into account the needs and circumstances of local markets, shall prescribe; and in specific cases other records may be required by the Secretary to be maintained for not more than three years in addition to the five-year period whenever in the judgment of the Secretary the retention of such records for the longer period is necessary for the effective administration and enforcement of this chapter.
(c) Access to records; audits
Every official agency, every State agency delegated authority under this chapter, and every person licensed to perform any official inspection or official weighing or supervision of weighing function under this chapter required to maintain records under this section shall permit any authorized representative of the Secretary or the Comptroller General of the United States to have access to, and to copy, such records at all reasonable times. The Secretary shall, from time to time, perform audits of official agencies and State agencies delegated authority of this chapter in such manner and at such periodic intervals as the Secretary deems appropriate.
(d) Maintenance of records by persons or entities receiving official inspection or weighing services; access to records and facilities
Every State, political subdivision thereof, or person who is the owner or operator of a commercial grain elevator, warehouse, or other storage or handling facility or is engaged in the merchandising of grain other than as a producer, and who, at any time, has obtained or obtains official inspection or weighing services shall maintain such complete and accurate records for such period of time as the Secretary may, by regulation, prescribe for the purpose of the administration and enforcement of this chapter, and permit any authorized representative of the Secretary, at all reasonable times, to have access to, and to copy, such records and to have access to any grain elevator, warehouse, or other storage or handling facility used by such persons for handling of grain.
(Aug. 11, 1916, ch. 313, pt. B, §12, as added Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 766; amended Pub. L. 94–582, §14, Oct. 21, 1976, 90 Stat. 2882; Pub. L. 95–113, title XVI, §§1601, 1604(i), Sept. 29, 1977, 91 Stat. 1024, 1029; Pub. L. 103–156, §12(k), Nov. 24, 1993, 107 Stat. 1529; Pub. L. 103–354, title II, §293(a)(5)–(7), Oct. 13, 1994, 108 Stat. 3237.)
Editorial Notes
Prior Provisions
A prior section 12 of act Aug. 11, 1916, ch. 313, pt. B, 39 Stat. 485, which appropriated a sum of $250,000 for expenses of carrying into effect this chapter, was not classified to the Code.
Amendments
1994—Pub. L. 103–354 struck out "or Administrator" after "representative of the Secretary" in subsec. (c), struck out "or the Administrator" after "representative of the Secretary" in subsec. (d), and substituted "Secretary" for "Administrator" wherever appearing.
1993—Pub. L. 103–156, §12(k), which directed amendment of "Section 12", without specifying the name of the Act being amended, was executed to this section, which is section 12 of the United States Grain Standards Act, to reflect the probable intent of Congress.
Subsec. (b). Pub. L. 103–156, §12(k)(1), substituted "the judgment of the Administrator" for "his judgment".
Subsec. (c). Pub. L. 103–156, §12(k)(2), substituted "the Administrator" for "he".
1977—Subsecs. (a), (b). Pub. L. 95–113, §1604(i)(1), inserted ", every State agency delegated authority under this chapter," after "official agency".
Subsec. (c). Pub. L. 95–113, §1604(i)(1), (2), inserted ", every State delegated authority under this chapter," after "official agency" and corrected a typographical error in Pub. L. 94–582 under which "delegate authority of this chapter" had been erroneously used instead of "delegated authority under this chapter".
Subsec. (d). Pub. L. 95–113, §1601, substituted "shall maintain such complete and accurate records for such period of time as the Administrator may, by regulation, prescribe for the purpose of the administration and enforcement of this chapter" for "shall, within the five-year period thereafter, maintain complete and accurate records of purchases, sales, transportation, storage, weighing, handling, treating, cleaning, drying, blending, and other processing, and official inspection and official weighing of grain,".
1976—Subsec. (a). Pub. L. 94–582 substituted "official agency" for "official inspection agency" and "Administrator" for "Secretary" and inserted reference to licensed performance of official weighing or supervision of weighing function.
Subsec. (b). Pub. L. 94–582 substituted "Every official agency and every person licensed to perform any official inspection or official weighing or supervision of weighing function under this chapter" for "Every official inspection agency" and "Administrator" for "Secretary" in two places, increased from two to five years the period of time for keeping the records, and inserted provision for keeping the records after the weighing.
Subsec. (c). Pub. L. 94–582 substituted "Every official agency and every person licensed to perform any official inspection or official weighing or supervision of weighing function under this chapter" for "Every official inspection agency", provided for access to and the copying of records by any authorized representative of the Administrator or the Comptroller General, and required Administrator audits of official agencies and State agencies delegate authority.
Subsec. (d). Pub. L. 94–582 added subsec. (d).
Statutory Notes and Related Subsidiaries
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date of 1976 Amendment
Amendment by Pub. L. 94–582 effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as a note under section 74 of this title.
Effective Date
For effective date of section, see section 2 of Pub. L. 90–487, set out as an Effective Date of 1968 Amendment note under section 78 of this title.
Maintenance of Records Not Involving Official Inspection or Official Weighing
Pub. L. 103–111, title I, Oct. 21, 1993, 107 Stat. 1055, provided in part: "That hereafter, none of the funds available to the Federal Grain Inspection Service may be used to pay the salaries of any person or persons who require, or who authorize payments from fee-supported funds to any person or persons who require nonexport, nonterminal interior elevators to maintain records not involving official inspection or official weighing in the United States under Public Law 94–582 [see Short Title of 1976 Amendment note set out under section 71 of this title] other than those necessary to fulfill the purposes of such Act."
Similar provisions were contained in the following prior appropriation acts:
Pub. L. 102–341, title I, Aug. 14, 1992, 106 Stat. 883.
Pub. L. 102–142, title I, Oct. 28, 1991, 105 Stat. 887.
Pub. L. 101–506, title I, Nov. 5, 1990, 104 Stat. 1324.
Pub. L. 101–161, title I, Nov. 21, 1989, 103 Stat. 960.
Pub. L. 100–460, title I, Oct. 1, 1988, 102 Stat. 2238.
§87b. Prohibited acts
(a) No person shall—
(1) knowingly falsely make, issue, alter, forge, or counterfeit any official certificate or other official form or official mark;
(2) knowingly utter, publish, or use as true any falsely made, issued, altered, forged, or counterfeited official certificate or other official form or official mark, or knowingly possess, without promptly notifying the Secretary or the representative of the Secretary, or fail to surrender to such a representative upon demand, any falsely made, issued, altered, forged, or counterfeited official certificate or other official form, or any device for making any official mark or simulation thereof, or knowingly possess any grain in a container bearing any falsely made, issued, altered, forged, or counterfeited official mark without promptly giving such notice;
(3) knowingly cause or attempt (whether successfully or not) to cause the issuance of a false or incorrect official certificate or other official form by any means, including but not limited to deceptive loading, handling, weighing, or sampling of grain, or submitting grain for official inspection or official weighing or supervision of weighing knowing that it has been deceptively loaded, handled, weighed, or sampled, without disclosing such knowledge to the official inspection personnel before official sampling or official weighing or supervision of weighing;
(4) alter any official sample of grain in any manner or, knowing that an official sample has been altered, thereafter represent it as an official sample;
(5) knowingly use any official grade designation or official mark on any container of grain by means of a tag, label, or otherwise, unless the grain in such container was officially inspected on the basis of an official sample taken while the grain was being loaded into or was in such container or officially weighed, respectively, and the grain was found to qualify for such designation or mark;
(6) knowingly make any false representation that any grain has been officially inspected, or officially inspected and found to be of a particular kind, class, quality, or condition, or that particular facts have been established with respect to grain by official inspection under this chapter, or that any weighing service under this chapter has been performed with respect to grain;
(7) improperly influence, or attempt to improperly influence, any official inspection personnel or personnel of agencies delegated authority or of agencies or other persons designated under this chapter or any officer or employee of the Department of Agriculture with respect to the performance of the duties of the officer, employee, or other person under this chapter;
(8) forcibly assault, resist, oppose, impede, intimidate, or interfere with any official inspection personnel or personnel of agencies delegated authority or of agencies or other persons designated under this chapter or any officer or employee of the Department of Agriculture in, or on account of, the performance of the duties of the officer, employee, or other person under this chapter;
(9) falsely represent that the person is licensed or authorized to perform an official inspection or official weighing or supervision of weighing function under this chapter;
(10) use any false or misleading means in connection with the making or filing of an application for official inspection or official weighing or supervision of weighing;
(11) violate section 77, 78, 79, 79a, 79b, 84, 87, 87a, 87e, or 87f–1 of this title;
(12) knowingly engage in falsely stating or falsifying the weight of any grain shipped in interstate or foreign commerce by any means, including, but not limited to, the use of inaccurate, faulty, or defective weighing equipment; or
(13) knowingly prevent or impede any buyer or seller of grain or other person having a financial interest in grain, or the authorized agent of any such person, from observing the loading of the grain inspected under this chapter and the weighing, sampling, and inspection of such grain under conditions prescribed by the Secretary.
(b) No person licensed or authorized to perform any function under this chapter shall—
(1) commit any offense prohibited by subsection (a);
(2) knowingly perform improperly any official sampling or other official inspection or weighing function under this chapter;
(3) knowingly execute or issue any false or incorrect official certificate or other official form; or
(4) accept money or other consideration, directly or indirectly, for any neglect or improper performance of duty.
(c) An offense shall be deemed to have been committed knowingly under this chapter if it resulted from gross negligence or was committed with knowledge of the pertinent facts.
(d)(1) Subject to paragraphs (2) and (3), to ensure the quality of grain marketed in or exported from the United States—
(A) no dockage or foreign material, as defined by the Secretary, once removed from grain shall be recombined with any grain; and
(B) no dockage or foreign material of any origin may be added to any grain.
(2) Nothing in paragraph (1) shall be construed to prohibit—
(A) the treatment of grain to suppress, destroy, or prevent insects and fungi injurious to stored grain;
(B) the marketing, domestically or for export, of dockage or foreign material removed from grain if such dockage or foreign material is marketed—
(i) separately and uncombined with any such whole grain;
(ii) in pelletized form; or
(iii) as a part of a processed ration for livestock, poultry, or fish;
(C) the blending of grain with similar grain of a different quality to adjust the quality of the resulting mixture;
(D) the recombination of broken corn or broken kernels, as defined by the Secretary, with grain of the type from which the broken corn or broken kernels were derived;
(E) effective for the period ending December 31, 1987, the recombination of dockage or foreign material, except dust, removed at an export loading facility from grain destined for shipment as a cargo under one export official certificate of inspection if—
(i) the recombination occurs during the loading of the cargo;
(ii) the purpose is to ensure uniformity of dockage or foreign material throughout that specific cargo; and
(iii) the separation and recombination are conducted in accordance with regulations issued by the Secretary; or
(F) the addition to grain of a dust suppressant, or the addition of confetti or any other similar material that serves the same purpose in a quantity necessary to facilitate identification of ownership or origin of a particular lot of grain.
(3)(A) The Secretary may, by regulation, exempt from paragraph (1) the last handling of grain in the final sale and shipment of such grain to a domestic user or processor if such exemption is determined by the Secretary to be in the best economic interest of producers, grain merchants, the industry involved, and the public.
(B) Grain sold under an exemption authorized by this paragraph shall be consumed or processed into one or more products by the purchaser, but may not be resold into commercial channels for such grain or blended with other grain for resale. Neither products nor byproducts derived therefrom (except vegetable oils as defined by the Secretary and used as a dust suppressant) shall be blended with or added to grain in commercial channels.
(e)(1) The Secretary may prohibit the contamination of sound and pure grain, or prohibit disguising the quality of grain, as a result of the introduction of—
(A) nongrain substances;
(B) grain unfit for ordinary commercial purposes; or
(C) grain that exceeds action limits established by the Food and Drug Administration or grain having residues that exceed the tolerance levels established by the Environmental Protection Agency.
(2) No prohibition imposed under this section shall be construed to restrict the marketing of any grain so long as the grade or condition of the grain is properly identified.
(3) Prior to taking action under this subsection, the Secretary shall promulgate regulations after providing for notice and an opportunity for public comment, that identify and define actions and conditions that are subject to prohibition.
(4) In no case shall the Secretary prohibit the blending of an entire grade of grain.
(5) In implementing paragraph (1)(C), the Secretary shall report any prohibitions to other appropriate public health agencies.
(Aug. 11, 1916, ch. 313, pt. B, §13, as added Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 766; amended Pub. L. 94–582, §15, Oct. 21, 1976, 90 Stat. 2883; Pub. L. 95–113, title XVI, §§1604(j), 1606(h), Sept. 29, 1977, 91 Stat. 1029, 1030; Pub. L. 99–641, title III, §303(a), Nov. 10, 1986, 100 Stat. 3564; Pub. L. 101–624, title XX, §2008, Nov. 28, 1990, 104 Stat. 3931; Pub. L. 103–156, §§7, 12(l), Nov. 24, 1993, 107 Stat. 1526, 1529; Pub. L. 103–354, title II, §293(a)(7), Oct. 13, 1994, 108 Stat. 3237; Pub. L. 106–472, title I, §107, Nov. 9, 2000, 114 Stat. 2060.)
Editorial Notes
Amendments
2000—Subsec. (e)(1). Pub. L. 106–472 inserted ", or prohibit disguising the quality of grain," after "sound and pure grain" in introductory provisions.
1994—Subsecs. (a)(2), (13), (d)(2)(D), (E)(iii), (e)(1), (3) to (5). Pub. L. 103–354 substituted "Secretary" for "Administrator" wherever appearing.
1993—Pub. L. 103–156, §12(l), which directed amendment of "Section 13", without specifying the name of the Act being amended, was executed to this section, which is section 13 of the United States Grain Standards Act, to reflect the probable intent of Congress.
Subsec. (a)(2). Pub. L. 103–156, §12(l)(1), substituted "the representative of the Administrator" for "his representative".
Subsec. (a)(7), (8). Pub. L. 103–156, §12(l)(2), substituted "the duties of the officer, employee, or other person" for "his duties".
Subsec. (a)(9). Pub. L. 103–156, §12(l)(3), substituted "the person" for "he".
Subsec. (a)(11). Pub. L. 103–156, §7, amended par. (11) generally. Prior to amendment, par. (11) read as follows: "violate any provision of section 77; 78; 79(f)(2), (3), or (4); 79a; 79b(c); 84; 87; 87a; or 87f–1 of this title;".
1990—Subsec. (e). Pub. L. 101–624 added subsec. (e).
1986—Subsec. (d). Pub. L. 99–641 added subsec. (d).
1977—Subsec. (a)(6). Pub. L. 95–113, §§1604(j)(1), 1606(h), substituted "or condition" for "condition, or quantity" and inserted ", or that any weighing service under this chapter has been performed with respect to grain" after "official inspection under this chapter".
Subsec. (a)(11). Pub. L. 95–113, §1604(j)(2), inserted references to sections 79(f)(3) and (4) and 87f–1 of this title.
Subsec. (a)(12). Pub. L. 95–113, §1604(j)(3), substituted "weighing equipment" for "testing equipment".
Subsec. (a)(13). Pub. L. 95–113, §1604(j)(4), substituted "financial interest in grain" for "financial interest in the grain" and "loading of the grain" for "loading of grain".
1976—Subsec. (a)(1). Pub. L. 94–582, §15(a)(1), substituted "official mark" for "official inspection mark".
Subsec. (a)(2). Pub. L. 94–582, §15(a)(2), substituted "official mark" for "official inspection mark" in three places, "official certificate" for "official inspection certificate" and "Administrator" for "Secretary".
Subsec. (a)(3). Pub. L. 94–582, §15(a)(2), prohibited deceptive weighing of grain or submitting grain for official weighing or supervision of weighing knowing it has been deceptively weighed without disclosure before official weighing or supervision of weighing.
Subsec. (a)(5). Pub. L. 94–582, §15(a)(3), substituted "official mark" for "official inspection mark" and inserted "or officially weighed, respectively," after "such container".
Subsecs. (a)(7), (8). Pub. L. 94–582, §15(a)(4), inserted "or personnel of agencies delegated authority or of agencies or other persons designated under this chapter" after "personnel".
Subsec. (a)(9). Pub. L. 94–582, §15(a)(5), inserted "or official weighing or supervision of weighing" after "official inspection".
Subsec. (a)(10). Pub. L. 94–582, §15(a)(5), (6), inserted "or official weighing or supervision of weighing" after "official inspection" and struck out "or" at end.
Subsec. (a)(11). Pub. L. 94–582, §15(a)(5), inserted after "sections 77, 78," references to "79(f)(2), 79a, 79b(c)".
Subsecs. (a)(12), (13). Pub. L. 94–582, §15(a)(6), added pars. (12) and (13).
Subsec. (b)(2). Pub. L. 94–582, §15(b), substituted "inspection or weighing function" for "inspection function".
Statutory Notes and Related Subsidiaries
Effective Date of 1986 Amendment
Pub. L. 99–641, title III, §303(b), Nov. 10, 1986, 100 Stat. 3565, provided that: "The amendments made by this section [amending this section] shall become effective on May 1, 1987."
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date of 1976 Amendment
Amendment by Pub. L. 94–582 effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as a note under section 74 of this title.
Effective Date
For effective date of section, see section 2 of Pub. L. 90–487, set out as an Effective Date of 1968 Amendment note under section 78 of this title.
Benefits and Costs Associated With Improved Grain Quality
Administrator of Federal Grain Inspection Service to estimate economic impact, including benefits and costs and distribution of such benefits and costs, of any major changes necessary to carry out amendments to this section by title XX of Pub. L. 101–624 prior to making such changes, see section 2003 of Pub. L. 101–624, set out as a note under section 76 of this title.
§87c. Criminal penalties
(a) Any person who commits any offense prohibited by section 87b of this title (except an offense prohibited by paragraphs (a)(7), (a)(8), and (b)(4) in which case the person shall be subject to the general penal statutes in title 18 relating to crimes and offenses against the United States) shall be guilty of a felony and shall, on conviction thereof, be subject to imprisonment for not more than five years, or a fine of not more than $20,000, or both such imprisonment and fine.
(b) Nothing in this chapter shall be construed as requiring the Secretary to report minor violations of this chapter for criminal prosecution whenever the Secretary believes that the public interest will be adequately served by a suitable written notice or warning, or to report any violation of this chapter for prosecution when the Secretary believes that institution of a proceeding under section 86 of this title will obtain compliance with this chapter and the Secretary institutes such a proceeding.
(c) Any officer or employee of the Department of Agriculture assigned to perform weighing functions under this chapter shall be considered as an employee of the Department of Agriculture assigned to perform inspection functions for the purposes of sections 1114 and 111 of Title 18.
(Aug. 11, 1916, ch. 313, pt. B, §14, as added Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 767; amended Pub. L. 94–582, §17, Oct. 21, 1976, 90 Stat. 2884; Pub. L. 103–156, §§8, 12(m), Nov. 24, 1993, 107 Stat. 1527, 1529; Pub. L. 103–354, title II, §293(a)(7), Oct. 13, 1994, 108 Stat. 3237.)
Editorial Notes
Amendments
1994—Subsec. (b). Pub. L. 103–354 substituted "Secretary" for "Administrator" wherever appearing.
1993—Pub. L. 103–156, §12(m), which directed amendment of "Section 14", without specifying the name of the Act being amended, was executed to this section, which is section 14 of the United States Grain Standards Act, to reflect the probable intent of Congress.
Subsec. (a). Pub. L. 103–156, §§8, 12(m)(1), substituted "the person" for "he", and struck out "shall be guilty of a misdemeanor and shall, on conviction thereof, be subject to imprisonment for not more than twelve months, or a fine of not more than $10,000, or both such imprisonment and fine; but, for each subsequent offense subject to this subsection, such person" before "shall be guilty of a felony".
Subsec. (b). Pub. L. 103–156, §12(m)(2), substituted "the Administrator" for "he" in three places.
1976—Subsec. (a). Pub. L. 94–582 inserted "(except an offense prohibited by paragraphs (a)(7), (a)(8), and (b)(4) in which case he shall be subject to the general penal statutes in Title 18 relating to crimes and offenses against the United States)", increased the punishment for misdemeanors from six months to twelve months and the fine from $3,000 to $10,000, and denominated subsequent offenses as felonies, substituting "but, for each subsequent offense subject to this subsection, such person shall be guilty of a felony and shall, on conviction thereof, be subject to imprisonment for not more than five years, or a fine of not more than $20,000, or both such imprisonment and fine" for "but if such offense is committed after one conviction of such person under this section has become final, such person shall be subject to imprisonment for not more than one year, or a fine of not more than $5,000, or both such imprisonment and fine".
Subsec. (b). Pub. L. 94–582 substituted "Administrator" for "Secretary" and inserted provision that nothing in this chapter shall be construed as requiring the Administrator to report any violation of this chapter for prosecution when he believes that institution of a proceeding under section 86 of this title will obtain compliance with this chapter and he institutes such a proceeding.
Subsec. (c). Pub. L. 94–582 added subsec. (c).
Statutory Notes and Related Subsidiaries
Effective Date of 1976 Amendment
Amendment by Pub. L. 94–582 effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as a note under section 74 of this title.
Effective Date
For effective date of section, see section 2 of Pub. L. 90–487, set out as an Effective Date of 1968 Amendment note under section 78 of this title.
§87d. Responsibility for acts of others
When construing and enforcing the provisions of this chapter, the act, omission, or failure of any official, agent, or other person acting for or employed by any association, partnership, or corporation within the scope of the employment or office of the official, agent, or other person shall, in every case, also be deemed the act, omission, or failure of such association, partnership, or corporation as well as that of the person.
(Aug. 11, 1916, ch. 313, pt. B, §15, as added Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 768; amended Pub. L. 103–156, §12(n), Nov. 24, 1993, 107 Stat. 1529.)
Editorial Notes
Amendments
1993—Pub. L. 103–156, which directed amendment of "Section 15" by substituting "the employment or office of the official, agent, or other person" for "his employment or office", without specifying the name of the Act being amended, was executed to this section, which is section 15 of the United States Grain Standards Act, to reflect the probable intent of Congress.
Statutory Notes and Related Subsidiaries
Effective Date
For effective date of section, see section 2 of Pub. L. 90–487, set out as an Effective Date of 1968 Amendment note under section 78 of this title.
§87e. General authorities
(a) Authority of Secretary
The Secretary is authorized to conduct such investigations; hold such hearings; require such reports from any official agency, any State agency delegated authority under this chapter, licensee, or other person; and prescribe such rules, regulations, and instructions, as the Secretary deems necessary to effectuate the purposes or provisions of this chapter. Such regulations may require, as a condition for official inspection or official weighing or supervision of weighing, among other things, (1) that there be installed specified sampling, handling, weighing, and monitoring equipment in grain elevators, warehouses, and other grain storage or handling facilities, (2) that approval of the Secretary be obtained as to the condition of vessels and other carriers or receptacles for the transporting or storing of grain, and (3) that persons having a financial interest in the grain which is to be inspected (or their agents) shall be afforded an opportunity to observe the weighing, loading, and official inspection thereof, under conditions prescribed by the Secretary. Whether any certificate, other form, representation, designation, or other description is false, incorrect, or misleading within the meaning of this chapter shall be determined by tests made in accordance with such procedures as the Secretary may adopt to effectuate the objectives of this chapter, if the relevant facts are determinable by such tests. Proceedings under section 85 of this title for refusal to renew, or for suspension or revocation of, a license shall not, unless requested by the respondent, be subject to the administrative procedure provisions in sections 554, 556, and 557 of title 5.
(b) Investigation of reports or complaints of discrepancies and abuses in official inspection or weighing of grain
The Secretary is authorized to investigate reports or complaints of discrepancies and abuses in the official inspection and weighing of grain under this chapter. The Secretary shall prescribe by regulation procedures for (1) promptly investigating (A) complaints of foreign grain purchasers regarding the official inspection or official weighing of grain shipped from the United States, (B) the cancellation of contracts for the export sale of grain required to be inspected or weighed under this chapter, and (C) any complaint regarding the operation or administration of this chapter or any official transaction with which this chapter is concerned; and (2) taking appropriate action on the basis of the findings of any investigation of such complaints.
(c) Monitoring of United States grain upon its entry into foreign nations
The Secretary is authorized to cause official inspection personnel to monitor in foreign nations which are substantial importers of grain from the United States, grain imported from the United States upon its entry into the foreign nation, to determine whether such grain is of a comparable kind, class, quality, and condition after considering the handling methods and conveyance utilized at the time of loading, and the same quantity that it was certified to be upon official inspection and official weighing in the United States.
(d) Authority of Office of Investigation of Department of Agriculture
The Office of Investigation of the Department of Agriculture (or such other organization or agency within the Department of Agriculture which may be delegated the authority, in lieu thereof, to conduct investigations on behalf of the Department of Agriculture) shall conduct such investigations regarding the operation or administration of this chapter or any official transaction with which this chapter is concerned, as the Director thereof deems necessary to assure the integrity of official inspection and weighing under this chapter.
(e) Research program to develop methods of improving accuracy and uniformity in grading grain
The Secretary is authorized to conduct, in cooperation with other agencies within the Department of Agriculture, a continuing research program for the purpose of developing methods to improve accuracy and uniformity in grading grain.
(f) Adequate personnel to meet inspection and weighing requirements
To assure the normal movement of grain at all inspection points in a timely manner consistent with the policy expressed in section 74 of this title, the Secretary shall, notwithstanding any other provision of law, provide adequate personnel to meet the inspection and weighing requirements of this chapter.
(g) Testing of certain weighing equipment
(1) Subject to paragraph (2), the Secretary may provide for the testing of weighing equipment used for purposes other than weighing grain. The testing shall be performed—
(A) in accordance with such regulations as the Secretary may prescribe; and
(B) for a reasonable fee established by regulation or contractual agreement and sufficient to cover, as nearly as practicable, the estimated costs of the testing performed.
(2) Testing performed under paragraph (1) may not conflict with or impede the objectives specified in section 74 of this title.
(h) Testing of grain inspection instruments
(1) Subject to paragraph (2), the Secretary may provide for the testing of grain inspection instruments used for commercial inspection. The testing shall be performed—
(A) in accordance with such regulations as the Secretary may prescribe; and
(B) for a reasonable fee established by regulation or contractual agreement and sufficient to cover, as nearly as practicable, the estimated costs of the testing performed.
(2) Testing performed under paragraph (1) may not conflict with or impede the objectives specified in section 74 of this title.
(i) Additional for fee services
(1) In accordance with such regulations as the Secretary may provide, the Secretary may perform such other services as the Secretary considers to be appropriate.
(2) In addition to the fees authorized by sections 79, 79a, 79b, and 87f–1 of this title, and this section, the Secretary shall collect reasonable fees to cover the estimated costs of services performed under paragraph (1) other than standardization and foreign monitoring activities.
(3) To the extent practicable, the fees collected under paragraph (2), together with any proceeds from the sale of any samples, shall cover the costs, including administrative and supervisory costs, of services performed under paragraph (1).
(j) Deposit of fees
Fees collected under subsections (g), (h), and (i) shall be deposited into the fund created under section 79(j) of this title.
(k) Official courtesies
The Secretary may extend appropriate courtesies to official representatives of foreign countries in order to establish and maintain relationships to carry out the policy stated in section 74 of this title. No gift offered or accepted pursuant to this subsection shall exceed $20 in value.
(Aug. 11, 1916, ch. 313, pt. B, §16, as added Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 768; amended Pub. L. 94–582, §18, Oct. 21, 1976, 90 Stat. 2884; Pub. L. 95–113, title XVI, §§1604(k), 1606(i), Sept. 29, 1977, 91 Stat. 1029, 1030; Pub. L. 102–237, title X, §1007(2), Dec. 13, 1991, 105 Stat. 1897; Pub. L. 103–156, §9, Nov. 24, 1993, 107 Stat. 1527; Pub. L. 103–354, title II, §293(a)(7), Oct. 13, 1994, 108 Stat. 3237.)
Editorial Notes
Amendments
1994—Subsecs. (a) to (c), (e) to (i), (k). Pub. L. 103–354 substituted "Secretary" for "Administrator" wherever appearing.
1993—Subsec. (b). Pub. L. 103–156, §9(1), struck out at end "The Administrator shall report to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate at the end of every three-month period with respect to investigative action taken on complaints, during the immediately preceding three-month period."
Subsecs. (g) to (k). Pub. L. 103–156, §9(2), added subsecs. (g) to (k).
1991—Subsec. (a). Pub. L. 102–237 substituted "Administrator" for "Administrtor" at end of second sentence.
1977—Subsec. (a). Pub. L. 95–113, §1604(k)(1), rearranged existing provisions and inserted references to the installation of handling and weighing equipment and to warehouses and other grain storage or handling facilities.
Subsec. (b). Pub. L. 95–113, §1606(i), substituted "Committee on Agriculture, Nutrition, and Forestry" for "Committee on Agriculture and Forestry".
Subsec. (f). Pub. L. 95–113, §1604(k)(2), struck out "additional" before "inspection and weighing requirements".
1976—Subsec. (a). Pub. L. 94–582 substituted authorizations of "Administrator" for authorizations of "Secretary", "official agency" for "official inspection agency", and "other person" for "any person" respecting reporting requirement, required reports from State agencies delegated authority under this chapter and from licensees, inserted items (1) to (3) relating to conditions for official inspection, authorized issuance of instructions, and struck out reference to section 86 of this title, including proceedings for refusal of official inspection service not required by section 77 of this title, as not being subject to administrative procedure provisions.
Subsecs. (b) to (f). Pub. L. 94–582 added subsecs. (b) to (f).
Statutory Notes and Related Subsidiaries
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date of 1976 Amendment
Amendment by Pub. L. 94–582 effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as a note under section 74 of this title.
Effective Date
For effective date of section, see section 2 of Pub. L. 90–487, set out as an Effective Date of 1968 Amendment note under section 78 of this title.
Temporary Exercise By Secretary of Agriculture of Powers, Duties, and Authorizations of Administrator Pending Appointment of Administrator
Powers, duties, and authorizations of the Administrator of the Federal Grain Inspection Service to be exercised by the Secretary of Agriculture pending the appointment of the Administrator, see section 25 of Pub. L. 94–582, set out as a note under section 75a of this title.
§87e–1. Repealed. Pub. L. 106–472, title I, §110(b), Nov. 9, 2000, 114 Stat. 2061
Section, Pub. L. 94–582, §23, Oct. 21, 1976, 90 Stat. 2888, authorized purchase or lease of inspection equipment.
§87f. Enforcement provisions
(a) Subpena power
For the purposes of this chapter, the Secretary shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documentary evidence of any person with respect to whom such authority is exercised; and the Secretary shall have power to require by subpena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation by the Secretary, and may administer oaths and affirmations, examine witnesses, and receive evidence.
(b) Disobedience of subpena
Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. In case of disobedience to a subpena the Secretary may invoke the aid of any court designated in subsection (h) of this section in requiring the attendance and testimony of witnesses and the production of documentary evidence.
(c) Court order requiring attendance and testimony of witnesses
Any such court within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpena issued to any person, issue an order requiring such person to appear before the Secretary or to produce documentary evidence if so ordered, or to give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof.
(d) Fees and mileage costs of witnesses
Witnesses summoned before the Secretary shall be paid the same fees and mileage that are paid witnesses in the courts of the United States, and witnesses from whom depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for like services in the courts of the United States.
(e) Violation of subpena as misdemeanor
Any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry, or to produce documentary evidence, if in the power of the person to do so, in obedience to the subpena or lawful requirement of the Secretary, shall be guilty of a misdemeanor, and upon conviction thereof be subject to imprisonment for not more than 1 year or a fine of not more than $10,000 or both the imprisonment and fine.
(f) Repealed. Pub. L. 91–452, title II, §203, Oct. 15, 1970, 84 Stat. 928
(g) Repealed. Pub. L. 94–582, §19(d), Oct. 21, 1976, 90 Stat. 2886
(h) District court jurisdiction
The United States district courts, the District Court of Guam, the District Court of the Virgin Islands, the highest court of American Samoa, and the United States courts of the other territories and possessions of the United States shall have jurisdiction in cases arising under this chapter.
(Aug. 11, 1916, ch. 313, pt. B, §17, as added Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 768; amended Pub. L. 91–452, title II, §203, Oct. 15, 1970, 84 Stat. 928; Pub. L. 94–582, §19, Oct. 21, 1976, 90 Stat. 2885; Pub. L. 103–156, §§10, 12(o), Nov. 24, 1993, 107 Stat. 1528, 1529; Pub. L. 103–354, title II, §293(a)(7), Oct. 13, 1994, 108 Stat. 3237.)
Editorial Notes
Amendments
1994—Subsecs. (a) to (e). Pub. L. 103–354 substituted "Secretary" for "Administrator" wherever appearing.
1993—Subsec. (e). Pub. L. 103–156, §12(o), which directed amendment of "Section 17(e)" by substituting "the power of the person" for "his power", without specifying the name of the Act being amended, was executed to this section, which is section 17 of the United States Grain Standards Act, to reflect the probable intent of Congress.
Pub. L. 103–156, §10, substituted "imprisonment for not more than 1 year or a fine of not more than $10,000 or both the imprisonment and fine" for "the penalties set forth in subsection (a) of section 87c of this title".
1976—Subsec. (a). Pub. L. 94–582, §19(a), (b), substituted "Administrator" for "Secretary" in two places and inserted "by the Administrator" after "under investigation", respectively.
Subsecs. (b) to (d). Pub. L. 94–582, §19(a), substituted "Administrator" for "Secretary" in subsecs. (b) to (d).
Subsec. (e). Pub. L. 94–582, §19(a), (c), substituted "Administrator" for "Secretary" and inserted "subsection (a) of" before "section 87c of this title".
Subsec. (g). Pub. L. 94–582, §19(d), struck out subsec. (g) which made unlawful disclosure of information by an officer or employee of the Department of Agriculture a misdemeanor, subject to the penalties set forth in section 87c of this title.
1970—Subsec. (f). Pub. L. 91–452 struck out subsec. (f) which related to the immunity from prosecution of any individual compelled to testify or produce evidence, documentary or otherwise, after having claimed his privilege against self-incrimination.
Statutory Notes and Related Subsidiaries
Effective Date of 1976 Amendment
Amendment by Pub. L. 94–582 effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as a note under section 74 of this title.
Effective Date of 1970 Amendment
For effective date of amendment by Pub. L. 91–452, and amendment not to affect any immunity to which any individual is entitled under this section by reason of any testimony given before sixtieth day following Oct. 15, 1970, see section 260 of Pub. L. 91–452, set out as an Effective Date; Savings Provision note under section 6001 of Title 18, Crimes and Criminal Procedure.
Effective Date
For effective date of section, see section 2 of Pub. L. 90–487, set out as an Effective Date of 1968 Amendment note under section 78 of this title.
§87f–1. Registration requirements
(a) General requirement
The Secretary shall provide, by regulation, for the registration of all persons engaged in the business of buying grain for sale in foreign commerce, and in the business of handling, weighing, or transporting of grain for sale in foreign commerce. This section shall not apply to—
(1) any person who only incidentally or occasionally buys for sale, or handles, weighs, or transports grain for sale and is not engaged in the regular business of buying grain for sale, or handling, weighing, or transporting grain for sale;
(2) any producer of grain who only incidentally or occasionally sells or transports grain which the producer has purchased;
(3) any person who transports grain for hire and does not own a financial interest in such grain; or
(4) any person who buys grain for feeding or processing and not for the purpose of reselling and only incidentally or occasionally sells such grain as grain.
(b) Required information
(1) All persons required to register under this chapter shall submit the following information to the Secretary:
(A) the name and principal address of the business,
(B) the names of all directors of such business,
(C) the names of the principal officers of such business,
(D) the names of all persons in a control relationship with respect to such business,
(E) a list of locations where the business conducts substantial operations, and
(F) such other information as the Secretary deems necessary to carry out the purposes of this chapter.
Persons required to register under this section shall also submit to the Secretary the information specified in clauses (A) through (F) of this paragraph with respect to any business engaged in the business of buying grain for sale in interstate commerce, and in the business of handling, weighing, or transporting of grain for sale in interstate commerce, if, with respect to such business, the person otherwise required to register under this section is in a control relationship.
(2) For the purposes of this section, a person shall be deemed to be in a "control relationship" with respect to a business required to register under subsection (a) and with respect to applicable interstate businesses if—
(A) such person has an ownership interest of 10 per centum or more in such business, or
(B) a business or group of business entities, with respect to which such person is in a control relationship, has an ownership interest of 10 per centum or more in such business.
(3) For purposes of clauses (A) and (B) of paragraph (2) of this subsection, a person shall be considered to own the ownership interest which is owned by his or her spouse, minor children, and relatives living in the same household.
(c) Certificate of registration
The Secretary shall issue a certificate of registration to persons who comply with the provisions of this section. The certificate of registration issued in accordance with this section shall be renewed annually. If there has been any change in the information required under subsection (b), the person holding such certificate shall, within thirty days of the discovery of such change, notify the Secretary of such change. No person shall engage in the business of buying grain for sale in foreign commerce, and in the business of handling, weighing, or transporting of grain in foreign commerce unless the person has registered with the Secretary as required by this chapter and has an unsuspended and unrevoked certificate of registration.
(d) Suspension or registration of certificate of registration
The Secretary may suspend or revoke any certificate of registration issued under this section whenever, after the person holding such certificate has been afforded an opportunity for a hearing in accordance with sections 554, 556, and 557 of title 5, the Secretary shall determine that such person has violated any provision of this chapter or of the regulations promulgated thereunder, or has been convicted of any violation involving the handling, weighing, or inspection of grain under title 18.
(e) Fees
The Secretary shall charge and collect fees from any person registered under this section. The amount of such fees shall be determined on the basis of the costs of the Secretary in administering the registration required by this section. Such fees shall be deposited in, and used as part of, the fund described in section 79(j) of this title.
(Aug. 11, 1916, ch. 313, pt. B, §17A, as added Pub. L. 94–582, §22, Oct. 21, 1976, 90 Stat. 2886; amended Pub. L. 95–113, title XVI, §1604(l), Sept. 29, 1977, 91 Stat. 1029; Pub. L. 103–156, §12(p), Nov. 24, 1993, 107 Stat. 1529; Pub. L. 103–354, title II, §293(a)(7), Oct. 13, 1994, 108 Stat. 3237.)
Editorial Notes
Amendments
1994—Subsecs. (a), (b)(1), (c) to (e). Pub. L. 103–354 substituted "Secretary" for "Administrator" wherever appearing.
1993—Pub. L. 103–156, §12(p), which directed amendment of "Section 17A", without specifying the name of the Act being amended, was executed to this section, which is section 17A of the United States Grain Standards Act, to reflect the probable intent of Congress.
Subsec. (a)(2). Pub. L. 103–156, §12(p)(1), substituted "the producer" for "he".
Subsec. (c). Pub. L. 103–156, §12(p)(2), substituted "the person" for "he" in last sentence.
1977—Subsec. (b)(1). Pub. L. 95–113 substituted "All persons required to register" for "All persons registered" in provisions preceding subpar. (A).
Statutory Notes and Related Subsidiaries
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date
Section effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as an Effective Date of 1976 Amendment note under section 74 of this title.
§87f–2. Reporting requirements
(a) General requirements; annual report to Congressional committees
On December 1 of each year, the Secretary shall submit a report to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate regarding the effectiveness of the official inspection and weighing system under this chapter for the prior fiscal year, with recommendations for any legislative changes necessary to accomplish the objectives stated in section 74 of this title.
(b) Notification of Congressional committees of complaints regarding faulty grain deliveries and cancellation of export contracts
The Secretary shall notify the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate (1) of any complaint regarding faulty grain delivery made to the Department of Agriculture by a foreign purchaser of United States grain, within thirty days after a determination by the Secretary that there is reasonable cause to believe that the grain delivery was in fact faulty, and (2) notwithstanding the provisions of section 612c–3 1 of this title, within thirty days after receipt by the Secretary or the Secretary 2 of notice of the cancellation of any contract for the export of more than one hundred thousand metric tons of grain.
(c) Submission to Congressional committees of annual summary of complaints from foreign purchasers and prospective purchasers of grain
On December 1 of each year, the Secretary shall submit to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate a summary of all other complaints received by the Department of Agriculture during the prior fiscal year from foreign purchasers and prospective purchasers of United States grain and other foreign purchasers interested in the trade of grain, and the resolution thereof: Provided, That the summary shall not include a complaint unless reasonable cause exists to believe that the complaint is valid, as determined by the Secretary.
(d) Enhancement of current reporting
(1) Increased frequency of inspection program data reporting
(A) In general
Beginning not later than 1 year after December 11, 2020, the Secretary shall publish quarterly reports describing data from the tests and inspections for intrinsic quality factors (including protein, oil, and starch) and food safety factors, as reported, in the aggregate, for fiscal years 2014 through 2018 in the tables in section V (relating to providing official grain inspection and weighing services) of the 2016 through 2018 annual reports to Congress by the Federal Grain Inspection Service.
(B) Delineation
The data from the tests and inspections under subparagraph (A) shall be delineated to reflect whether the tests and inspections were requested of or performed by—
(i) the Secretary; or
(ii) a State agency delegated authority under section 79 or 79a of this title or an official agency.
(2) Exceptions and waivers
Beginning not later than 1 year after December 11, 2020, the Secretary shall publish quarterly reports describing—
(A) the number of exceptions requested under section 79(f)(2)(B) of this title;
(B) the number of exceptions granted under section 79(f)(2)(B) of this title;
(C) the number of waivers requested under section 77(a)(1) of this title; and
(D) the number of waivers granted under section 77(a)(1) of this title.
(e) Additional reporting; consultation
The Secretary may, to the extent determined appropriate by the Secretary, in consultation with State agencies delegated authority under sections 79 and 79a of this title, official agencies, and the grain industries described in the second sentence of section 87j(a) of this title, publish—
(1) data relating to testing for other intrinsic quality or food safety factors; and
(2) other data collected from inspection and weighing activities conducted under this chapter.
(f) Protection of confidential business information
Any trade secrets or information described in section 552(b)(4) of title 5 that is provided to or collected by the Secretary in carrying out subsection (d) or (e) shall not be included in a report under subsection (d) or (e) or otherwise publicly disclosed.
(Aug. 11, 1916, ch. 313, pt. B, §17B, as added Pub. L. 94–582, §22, Oct. 21, 1976, 90 Stat. 2888; amended Pub. L. 95–113, title XVI, §§1604(m), 1606(i), (j), Sept. 29, 1977, 91 Stat. 1029, 1030; Pub. L. 102–237, title X, §1007(3), Dec. 13, 1991, 105 Stat. 1897; Pub. L. 103–354, title II, §293(a)(7), Oct. 13, 1994, 108 Stat. 3237; Pub. L. 116–216, §5, Dec. 11, 2020, 134 Stat. 1048.)
Editorial Notes
References in Text
Section 612c–3 of this title, referred to in subsec. (b), was repealed by Pub. L. 101–624, title XV, §1578, Nov. 28, 1990, 104 Stat. 3702.
Amendments
2020—Subsecs. (d) to (f). Pub. L. 116–216 added subsecs. (d) to (f).
1994—Pub. L. 103–354 substituted "Secretary" for "Administrator" wherever appearing.
1991—Subsec. (a). Pub. L. 102–237 substituted "On December 1 of each year, the" for "The" and "Committee on Agriculture" for "committee on Agriculture" before "of the House" and struck out "one year after the effective date of the United States Grain Standards Act of 1976 setting forth the actions taken by him in implementing the provisions of that Act; and, on December 1 of each year thereafter, the Administrator shall report to such committees" before "regarding".
1977—Subsec. (a). Pub. L. 95–113, §1606(i), (j), substituted "Committee on Agriculture, Nutrition, and Forestry" for "Committee on Agriculture and Forestry" and "inspection and weighing" for "inspection".
Subsec. (b). Pub. L. 95–113, §§1604(m), 1606(i), substituted "Committee on Agriculture, Nutrition, and Forestry" for "Committee on Agriculture and Forestry" in provisions preceding cl. (1) and, in cl. (2) substituted "notwithstanding the provisions of section 612c–3 of this title, within thirty days after receipt by the Administrator or the Secretary of notice of the cancellation" for "within thirty days after receipt by the Administrator or the Secretary of the cancellation".
Subsec. (c). Pub. L. 95–113, §1606(i), substituted "Committee on Agriculture, Nutrition, and Forestry" for "Committee on Agriculture and Forestry".
Statutory Notes and Related Subsidiaries
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date
Section effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as an Effective Date of 1976 Amendment note under section 74 of this title.
1 See References in Text note below.
2 So in original. The words "or the Secretary" probably should not appear.
§87g. Relation to State and local laws; separability
(a) No State or subdivision thereof may require the inspection or description in accordance with any standards of kind, class, quality, condition, or other characteristics of grain as a condition of shipment, or sale, of such grain in interstate or foreign commerce, or require any license for, or impose any other restrictions upon the performance of any official inspection or weighing function under this chapter by official inspection personnel. Otherwise nothing in this chapter shall invalidate any law or other provision of any State or subdivision thereof in the absence of a conflict with this chapter.
(b) If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the chapter and of the application of such provision to other persons and circumstances shall not be affected thereby.
(Aug. 11, 1916, ch. 313, pt. B, §18, as added Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 769; amended Pub. L. 94–582, §20, Oct. 21, 1976, 90 Stat. 2886.)
Editorial Notes
Amendments
1976—Subsec. (a). Pub. L. 94–582 substituted in first sentence "official inspection or weighing function" for "official inspection function".
Statutory Notes and Related Subsidiaries
Effective Date of 1976 Amendment
Amendment by Pub. L. 94–582 effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as a note under section 74 of this title.
Effective Date
For effective date of section, see section 2 of Pub. L. 90–487, set out as an Effective Date of 1968 Amendment note under section 78 of this title.
§87h. Funding
(a) Authorization of appropriations
There are authorized to be appropriated $23,000,000 for standardization and compliance activities, monitoring in foreign ports grain officially inspected and weighed under this chapter, and any other expenses necessary to carry out the provisions of this chapter for each of the fiscal years 2021 through 2025, to the extent that financing is not obtained from fees and sales of samples as provided for in sections 79, 79a, 79b, 87e, and 87f–1 of this title.
(b) Limitations on uses of user fees
(1) Definitions
In this subsection:
(A) Official inspection or weighing service
The term "official inspection or weighing service" means official inspection, official weighing, supervision of weighing, supervision of agency personnel, supervision of the field office personnel of the Secretary, testing of equipment or instruments, other services, or registration, the cost to the Secretary of which is authorized to be covered by the collection of a user fee pursuant to section 79, 79a, 79b, 87e, or 87f–1 of this title, as applicable.
(B) User fee
The term "user fee" means a fee collected by the Secretary under section 79, 79a, 79b, 87e, or 87f–1 of this title.
(2) Requirement
A user fee—
(A) shall be used solely to cover—
(i) the cost to the Secretary for carrying out official inspection or weighing services; and
(ii) administrative costs to the Secretary directly relating to official inspection or weighing services; and
(B) shall not be used for—
(i) activities relating to the development or maintenance of grain standards; or
(ii) any other activity that is not directly related to the performance of official inspection or weighing services.
(Aug. 11, 1916, ch. 313, pt. B, §19, as added Pub. L. 90–487, §1, Aug. 15, 1968, 82 Stat. 769; amended Pub. L. 94–582, §21, Oct. 21, 1976, 90 Stat. 2886; Pub. L. 95–113, title XVI, §§1602(c), 1604(n), Sept. 29, 1977, 91 Stat. 1025, 1029; Pub. L. 97–35, title I, §155(4), Aug. 13, 1981, 95 Stat. 372; Pub. L. 98–469, §2(3), Oct. 11, 1984, 98 Stat. 1832; Pub. L. 100–518, §2(4), Oct. 24, 1988, 102 Stat. 2586; Pub. L. 103–156, §3, Nov. 24, 1993, 107 Stat. 1525; Pub. L. 106–472, title I, §108, Nov. 9, 2000, 114 Stat. 2060; Pub. L. 109–83, §1(a), Sept. 30, 2005, 119 Stat. 2053; Pub. L. 114–54, title III, §301(f), Sept. 30, 2015, 129 Stat. 520; Pub. L. 116–216, §6, Dec. 11, 2020, 134 Stat. 1049.)
Editorial Notes
Amendments
2020—Pub. L. 116–216, §6(1), substituted "Funding" for "Appropriations" in section catchline.
Subsec. (a). Pub. L. 116–216, §6(1), (2), designated existing provisions as subsec. (a), inserted heading, and substituted "There are authorized" for "There are hereby authorized", "$23,000,000" for "such sums as are necessary", and "2021 through 2025" for "1988 through 2020".
Subsec. (b). Pub. L. 116–216, §6(3), added subsec. (b).
2015—Pub. L. 114–54 substituted "2020" for "2015".
2005—Pub. L. 109–83 substituted "2015" for "2005".
2000—Pub. L. 106–472 substituted "2005" for "2000".
1993—Pub. L. 103–156 substituted "1988 through 2000" for "during the period beginning October 1, 1988, and ending September 30, 1993" and inserted references to sections 79b and 87e of this title.
1988—Pub. L. 100–518 amended section generally, substituting "1988" for "1981" and "1993" for "1984".
1984—Pub. L. 98–469 temporarily substituted "September 30, 1988" for "September 30, 1984". See Effective and Termination Dates of 1984 Amendment note below.
1981—Pub. L. 97–35 temporarily amended section, substantially revising enumerated activities for which appropriations are authorized and limiting such authorization for each of the fiscal years during the period beginning Oct. 1, 1981, and ending Sept. 30, 1984. See Effective and Termination Dates of 1981 Amendment note below.
1977—Pub. L. 95–113 substituted "Federal administrative and supervisory costs related to the official inspection or the provision of weighing services for grain" for "those Federal administrative and supervisory costs incurred within the Service's Washington office or not directly related to the official inspection or the provision of weighing services for grain" and renumbered this section as section 19 of the United States Grain Standards Act, thereby correcting an error in the 1976 amendment of this section by Pub. L. 94–582 under which this section had inadvertently been renumbered from section 19 of the United States Grain Standards Act to section 21 thereof.
1976—Pub. L. 94–582 enumerated specific items for which appropriations are authorized and provided for financing obtained from fees and sales of samples as provided in sections 79a and 87f–1 of this title.
Statutory Notes and Related Subsidiaries
Effective Date of 2000 Amendment
Amendment by Pub. L. 106–472 effective as if enacted Sept. 30, 2000, see section 111 of Pub. L. 106–472, set out as a note under section 79 of this title.
Effective Date of 1993 Amendment
Amendment by Pub. L. 103–156 effective as of Sept. 30, 1993, see section 16(b) of Pub. L. 103–156, set out as a note under section 75 of this title.
Effective and Termination Dates of 1988 Amendment
That part of section 2 of Pub. L. 100–518 which provided that amendment made by Pub. L. 100–518 was effective for the period Oct. 1, 1988, through Sept. 30, 1993, inclusive, was repealed, effective Sept. 30, 1993, by Pub. L. 103–156, §§13(a), 16(b), Nov. 24, 1993, 107 Stat. 1529, 1530.
Effective and Termination Dates of 1984 Amendment
Pub. L. 98–469, §2, Oct. 11, 1984, 98 Stat. 1831, provided that the amendment made by Pub. L. 98–469 is effective for period beginning Oct. 11, 1984, and ending Sept. 30, 1988.
Effective and Termination Dates of 1981 Amendment
Pub. L. 97–35, title I, §155, Aug. 13, 1981, 95 Stat. 371, as amended by Pub. L. 98–469, §1, Oct. 11, 1984, 98 Stat. 1831, provided that the amendment made by Pub. L. 97–35 is effective for period beginning Oct. 1, 1981, and ending Sept. 30, 1988.
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date of 1976 Amendment
Amendment by Pub. L. 94–582 effective 30 days after Oct. 21, 1976, see section 27 of Pub. L. 94–582, as amended, set out as a note under section 74 of this title.
Effective Date
For effective date of section, see section 2 of Pub. L. 90–487, set out as an Effective Date of 1968 Amendment note under section 78 of this title.
§87i. Omitted
Editorial Notes
Codification
Section, act Aug. 11, 1916, ch. 313, pt. B, §20, as added Aug. 13, 1981, Pub. L. 97–35, title I, §155(5), 95 Stat. 372, which established an advisory committee, was effective for the period Oct. 1, 1981, through Sept. 30, 1988, pursuant to section 155 of Pub. L. 97–35, as amended. See section 87j of this title.
§87j. Advisory committee
(a) Establishment; number and terms of members
Not later than ninety days after October 24, 1988, the Secretary shall establish an advisory committee to provide advice to the Secretary with respect to implementation of this chapter consistent with the declarations of policy in section 74 of this title. The advisory committee shall consist of fifteen members, appointed by the Secretary, who represent the interests of all segments of the grain producing, processing, storing, merchandising, consuming, and exporting industries, including grain inspection and weighing agencies and scientists with expertise in research related to the policies established in section 74 of this title. Members of the advisory committee shall be appointed to three-year terms, except that of the initial fifteen members of the advisory committee first appointed following the enactment of this section, five shall be appointed for terms of one year and five shall be appointed for terms of two years. No member of the advisory committee may serve successively for more than 2 terms.
(b) Chapter 10 of title 5 as governing
The advisory committee shall be governed by the provisions of chapter 10 of title 5.
(c) Clerical assistance and staff personnel
The Secretary shall provide the advisory committee with necessary clerical assistance and staff personnel.
(d) Compensation and travel expenses
Members of the advisory committee shall serve without compensation, if not otherwise officers or employees of the United States, except that members shall, while away from their homes or regular places of business in the performance of services under this chapter, be allowed travel expenses, including per diem in lieu of subsistence, as authorized under section 5703 of title 5.
(e) Expiration of Secretary's authority
The authority provided to the Secretary for the establishment and maintenance of an advisory committee under this section shall expire on September 30, 2025.
(Aug. 11, 1916, ch. 313, pt. B, §21, as added Pub. L. 100–518, §2(5), Oct. 24, 1988, 102 Stat. 2586; amended Pub. L. 103–156, §§13(b)(1), 14(c), Nov. 24, 1993, 107 Stat. 1529, 1530; Pub. L. 103–354, title II, §293(a)(7), Oct. 13, 1994, 108 Stat. 3237; Pub. L. 106–472, title I, §109, Nov. 9, 2000, 114 Stat. 2060; Pub. L. 109–83, §1(a), Sept. 30, 2005, 119 Stat. 2053; Pub. L. 114–54, title III, §301(g), Sept. 30, 2015, 129 Stat. 520; Pub. L. 116–216, §7, Dec. 11, 2020, 134 Stat. 1050; Pub. L. 117–286, §4(a)(20), Dec. 27, 2022, 136 Stat. 4307.)
Editorial Notes
References in Text
The enactment of this section, referred to in subsec. (a), means Oct. 24, 1988, the date of enactment of Pub. L. 100–518.
Amendments
2022—Subsec. (b). Pub. L. 117–286 substituted "chapter 10 of title 5." for "the Federal Advisory Committee Act."
2020—Subsec. (a). Pub. L. 116–216, §7(1), in last sentence, substituted "successively for more than 2 terms" for "successive terms".
Subsec. (e). Pub. L. 116–216, §7(2), substituted "2025" for "2020".
2015—Subsec. (e). Pub. L. 114–54 substituted "2020" for "2015".
2005—Subsec. (e). Pub. L. 109–83 substituted "2015" for "2005".
2000—Subsec. (e). Pub. L. 106–472 substituted "2005" for "2000".
1994—Subsecs. (a), (c). Pub. L. 103–354 substituted "Secretary" for "Administrator".
1993—Subsec. (a). Pub. L. 103–156, §13(b)(1), struck out "(1)" before "Not later than" and struck out par. (2) which read as follows: "To ensure a smooth transition, the advisory committee established under section 87i of this title (as in effect prior to October 1, 1988) shall continue in existence until all members of the advisory committee established under this section are appointed; and the Secretary may appoint members of the advisory committee established under section 87i of this title to serve on the advisory committee established under this section, without regard to the time of service of such members on the advisory committee established under section 87i of this title."
Subsec. (e). Pub. L. 103–156, §14(c), added subsec. (e).
Statutory Notes and Related Subsidiaries
Effective Date of 2000 Amendment
Amendment by Pub. L. 106–472 effective as if enacted Sept. 30, 2000, see section 111 of Pub. L. 106–472, set out as a note under section 79 of this title.
Effective and Termination Dates
That part of section 2 of Pub. L. 100–518 which provided that section was effective for period Oct. 1, 1988, through Sept. 30, 1993, inclusive, was repealed, effective Sept. 30, 1993, by Pub. L. 103–156, §§13(a), 16(b), Nov. 24, 1993, 107 Stat. 1529, 1530.
§87k. Standardizing commercial inspections
(a) Testing equipment
To promote greater uniformity in commercial grain inspection results, the Secretary may work in conjunction with the National Institute for Standards and Technology, the National Conference on Weights and Measures, or other appropriate governmental, scientific, or technical organizations to—
(1) identify inspection instruments requiring standardization under subsection (b);
(2) establish performance criteria for commercial grain inspection instruments;
(3) develop a national program to approve grain inspection instruments for commercial inspection; and
(4) develop standard reference materials or other means necessary for calibration or testing of approved instruments.
(b) General inspection procedures
To ensure that producers are treated uniformly in delivering grain, the Secretary shall develop practical and cost-effective procedures for conducting commercial inspections of grain with respect to the application of quality factors, that result in premiums and discounts. The procedures shall be made available to country elevators and others making first-point-of-delivery inspections.
(c) Inspection services and information
To encourage the use of equipment and procedures developed in accordance with subsections (a) and (b), the Secretary shall provide for official inspection services by the Secretary, States, and official inspection agencies and provide information on the proper use of sampling and inspection equipment, application of the grain standards, and availability of official inspection services, including appeals under this chapter.
(d) Standardized aflatoxin equipment and procedures
The Secretary shall—
(1) establish uniform standards for testing equipment; and
(2) establish uniform testing procedures and sampling techniques;
that may be used by processors, refiners, operators of grain elevators and terminals, and others to accurately detect the level of aflatoxin contamination of corn in the United States.
(Aug. 11, 1916, ch. 313, pt. B, §22, as added Pub. L. 101–624, title XX, §2009, Nov. 28, 1990, 104 Stat. 3931; amended Pub. L. 103–156, §§11, 13(b)(2), Nov. 24, 1993, 107 Stat. 1528, 1529; Pub. L. 103–354, title II, §293(a)(7), (8), Oct. 13, 1994, 108 Stat. 3237.)
Editorial Notes
References in Text
This chapter, referred to in subsec. (c), was in the original "this Act" and was translated as reading "this part", meaning part B of act Aug. 11, 1916, known as the United States Grain Standards Act, to reflect the probable intent of Congress.
Amendments
1994—Pub. L. 103–354 substituted "Secretary" for "Administrator" wherever appearing and "Secretary" for "Service" in subsec. (c).
1993—Subsec. (a). Pub. L. 103–156, §11, substituted ", the National Conference on Weights and Measures, or other appropriate governmental, scientific, or technical organizations" for "and the National Conference on Weights and Measures" in introductory provisions.
Subsec. (c). Pub. L. 103–156, §13(b)(2), substituted "subsections (a) and (b)" for "subsection (a) and (b)".
CHAPTER 4—NAVAL STORES
Statutory Notes and Related Subsidiaries
Transfer of Functions
All functions of the Federal Security Administrator were transferred to the Secretary of Health, Education, and Welfare and all agencies of the Federal Security Agency were transferred to the Department of Health, Education, and Welfare by section 5 of 1953 Reorg. Plan No. 1, eff. Mar. 12, 1953, 18 F.R. 2053, 67 Stat. 631, set out in the Appendix to Title 5, Government Organization and Employees. The Federal Security Agency and the office of Administrator were abolished by section 8 of 1953 Reorg. Plan No. 1.
The Secretary and Department of Health, Education, and Welfare was redesignated the Secretary and Department of Health and Human Services by section 3508 of Title 20, Education.
The Food and Drug Administration in the Department of Agriculture and its functions, except those functions relating to the administration of the Naval Stores Act, this chapter, were transferred to the Federal Security Agency by 1940 Reorg. Plan No. IV, §12, set out in the Appendix to Title 5, Government Organization and Employees.
§91. Short title
For convenience of reference, this chapter may be designated and cited as "The Naval Stores Act."
(Mar. 3, 1923, ch. 217, §1, 42 Stat. 1435.)
Statutory Notes and Related Subsidiaries
Effective Date
Act Mar. 3, 1923, ch. 217, §10, 42 Stat. 1437, provided: "That this Act [enacting this chapter] shall become effective at the expiration of ninety days next after the date of its approval [Mar. 23, 1923]."
§92. Definitions
When used in this chapter—
(a) "Naval stores" means spirits of turpentine and rosin.
(b) "Spirits of turpentine" includes gum spirits of turpentine and wood turpentine.
(c) "Gum spirits of turpentine" means spirits of turpentine made from gum (oleoresin) from a living tree.
(d) "Wood turpentine" includes steam distilled wood turpentine and destructively distilled wood turpentine.
(e) "Steam distilled wood turpentine" means wood turpentine distilled with steam from the oleoresin within or extracted from the wood.
(f) "Destructively distilled wood turpentine" means wood turpentine obtained in the destructive distillation of the wood.
(g) "Rosin" includes gum rosin and wood rosin.
(h) "Gum rosin" means rosin remaining after the distillation of gum spirits of turpentine.
(i) "Wood rosin" means rosin remaining after the distillation of steam distilled wood turpentine.
(j) "Package" means any container of naval stores, and includes barrel, tank, tank car, or other receptacle.
(k) "Person" includes partnerships, associations, and corporations, as well as individuals.
(l) The term "commerce" means commerce between any State, Territory, or possession, or the District of Columbia, and any place outside thereof; or between points within the same State, Territory, or possession, or the District of Columbia, but through any place outside thereof; or within any Territory or possession or the District of Columbia.
(Mar. 3, 1923, ch. 217, §2, 42 Stat. 1435.)
§93. Establishment of official naval stores standards
For the purposes of this chapter the kinds of spirits of turpentine defined in subdivisions (c), (e), and (f) of section 92 of this title and the rosin types heretofore prepared and recommended under existing laws, by or under authority of the Secretary of Agriculture, are made the standards for naval stores until otherwise prescribed as hereinafter provided. The Secretary of Agriculture is authorized to establish and promulgate standards for naval stores for which no standards are herein provided, after at least three months' notice of the proposed standard shall have been given to the trade, so far as practicable, and due hearings or reasonable opportunities to be heard shall have been afforded those favoring or opposing the same. No such standard shall become effective until after three months from the date of the promulgation thereof. Any standard made by this chapter or established and promulgated by the Secretary of Agriculture in accordance therewith may be modified by said Secretary whenever, for reasons and causes deemed by him sufficient, the interests of the trade shall so require, after at least six months' notice of the proposed modifications shall have been given to the trade, so far as practicable, and due hearings or reasonable opportunities to be heard shall have been afforded those favoring or opposing the same; and no such modification so made shall become effective until after six months from the date when made.
The various grades of rosin, from highest to lowest, shall be designated, unless and until changed, as hereinbefore provided, by the following letters, respectively: X, WW, WG, N, M, K, I, H, G, F, E, D, and B, together with the designation "gum rosin" or "wood rosin", as the case may be.
The standards herein made and authorized to be made shall be known as the "Official Naval Stores Standards of the United States," and may be referred to by the abbreviated expression "United States Standards", and shall be the standards by which all naval stores in commerce shall be graded and described.
(Mar. 3, 1923, ch. 217, §3, 42 Stat. 1435.)
§94. Supplying duplicates of standards; examination, etc., of naval stores and certification thereof
The Secretary of Agriculture shall provide, if practicable, any interested persons with duplicates of the official naval stores standards of the United States upon request accompanied by tender of satisfactory security for the return thereof, under such regulations as he may prescribe. The Secretary of Agriculture shall examine, if practicable, upon request of any interested person, any naval stores and shall analyze, classify, or grade the same under such regulations as he may prescribe. He shall furnish a certificate showing the analysis, classification, or grade of such naval stores, which certificate shall be prima facie evidence of the analysis, classification, or grade of such naval stores and of the contents of any package from which the same may have been taken, as well as of the correctness of such analysis, classification, or grade and shall be admissible as such in any court.
(Mar. 3, 1923, ch. 217, §4, 42 Stat. 1436; Pub. L. 97–35, title I, §159(a)(1), Aug. 13, 1981, 95 Stat. 376.)
Editorial Notes
Amendments
1981—Pub. L. 97–35 struck out "on tender of the cost thereof as required by him," after "grade the same".
Statutory Notes and Related Subsidiaries
Effective Date of 1981 Amendment
Pub. L. 97–35, title I, §159(b), Aug. 13, 1981, 95 Stat. 376, provided that: "The provisions of this section [amending this section and section 98 of this title] shall become effective October 1, 1981".
§95. Prohibition of acts deemed injurious to commerce in naval stores
The following acts are hereby declared injurious to commerce in naval stores and are hereby prohibited and made unlawful:
(a) The sale in commerce of any naval stores, or of anything offered as such, except under or by reference to United States standards.
(b) The sale of any naval stores under or by reference to United States standards which is other than what it is represented to be.
(c) The use in commerce of the word "turpentine" or the word "rosin," singly or with any other word or words, or of any compound, derivative, or imitation of either such word, or of any misleading word, or of any word, combination of words, letter, or combination of letters, provided herein or by the Secretary of Agriculture to be used to designate naval stores of any kind or grade, in selling, offering for sale, advertising, or shipping anything other than naval stores of the United States standards.
(d) The use in commerce of any false, misleading, or deceitful means or practice in the sale of naval stores or of anything offered as such.
(Mar. 3, 1923, ch. 217, §5, 42 Stat. 1436.)
§96. Punishment for violation of prohibition
Any person willfully violating any provision of section 95 of this title shall, on conviction, be punished for each offense by a fine not exceeding $5,000 or by imprisonment for not exceeding one year, or both.
(Mar. 3, 1923, ch. 217, §6, 42 Stat. 1436.)
§97. Purchase and analysis by Secretary of samples of spirits of turpentine to detect violations; reports to Department of Justice; publication of results of analysis, etc.
The Secretary of Agriculture is hereby authorized to purchase from time to time in open market samples of spirits of turpentine and of anything offered for sale as such for the purpose of analysis, classification, or grading and of detecting any violation of this chapter. He shall report to the Department of Justice for appropriate action any violation of this chapter coming to his knowledge. He is also authorized to publish from time to time results of any analysis, classification, or grading of spirits of turpentine and of anything offered for sale as such made by him under any provision of this chapter.
(Mar. 3, 1923, ch. 217, §7, 42 Stat. 1436.)
§98. Fees and charges for naval stores inspection and related services; establishment, collection, etc.; authorization of appropriations; administrative expenses
(a) The Secretary of Agriculture shall fix and cause to be collected fees and charges for the establishment of standards under section 93 of this title and for examinations, analyses, classifications, and other services under section 94 of this title which shall cover, as nearly as practicable, the costs of providing such services and standards as the Secretary shall deem necessary, including administrative and supervisory costs. Such fees and charges, when collected, shall be credited to the current appropriation account that incurs such costs and shall be available without fiscal year limitation to pay the expenses of the Secretary incident to providing such services and standards under this chapter. Fees and charges shall be assessed and collected from processors and warehousers of naval stores, and inspection and related services shall be suspended or denied to any such processor or warehouser upon failure to timely pay the fees and charges assessed.
(b) There are hereby authorized to be appropriated such sums as may be necessary for the enforcement and administration of this chapter.
(Mar. 3, 1923, ch. 217, §8, 42 Stat. 1436; Pub. L. 97–35, title I, §159(a)(2), Aug. 13, 1981, 95 Stat. 376.)
Editorial Notes
Amendments
1981—Pub. L. 97–35 added subsec. (a). Former unlettered provisions were designated subsec. (b) and, as so designated, struck out authorization of the Secretary to employ personnel and make administrative expenditures.
Statutory Notes and Related Subsidiaries
Effective Date of 1981 Amendment
Amendment by Pub. L. 97–35 effective Oct. 1, 1981, see section 159(b) of Pub. L. 97–35, set out as a note under section 94 of this title.
§99. Separability
If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the chapter and of the application of such provisions to other persons and circumstances shall not be affected thereby.
(Mar. 3, 1923, ch. 217, §9, 42 Stat. 1437.)
CHAPTER 5—IMPORTATION OF ADULTERATED SEEDS
§§111 to 116. Repealed. Aug. 9, 1939, ch. 615, §419, 53 Stat. 1290
Sections, act Aug. 24, 1912, ch. 382, §§1–6, 37 Stat. 506, related to regulation of foreign commerce by prohibiting admission into United States of adulterated grain and seeds. See section 1551 et seq. of this title.
Section 111 amended by acts Aug. 11, 1916, ch. 313, 39 Stat. 453; Apr. 26, 1926, ch. 186, §1, 44 Stat. 325.
Section 113 amended by act Aug. 11, 1916, ch. 313, 39 Stat. 453.
Sections 115 and 116 amended by act Apr. 26, 1926, ch. 186, §2, 44 Stat. 325.
Statutory Notes and Related Subsidiaries
Effective Date of Repeal; Exceptions
Repeal effective on the one hundred and eightieth day after Aug. 9, 1939, except that notices with respect to imported alfalfa and red clover seed promulgated by the Secretary of Agriculture under authority of former sections 111 to 116 of this title, which were in effect Aug. 9, 1939, remained in full force and effect as if promulgated under sections 1551 to 1610 of this title.
CHAPTER 6—INSECTICIDES AND ENVIRONMENTAL PESTICIDE CONTROL
SUBCHAPTER I—INSECTICIDES
SUBCHAPTER II—ENVIRONMENTAL PESTICIDE CONTROL
SUBCHAPTER I—INSECTICIDES
§§121 to 134. Repealed. June 25, 1947, ch. 125, §16, 61 Stat. 172
Sections, act Apr. 26, 1910, ch. 191, 36 Stat. 335, formerly known as "The Insecticides Act", are covered by subchapter II of this chapter.
Statutory Notes and Related Subsidiaries
Effective Date of Repeal; Savings Provision
Act June 25, 1947, ch. 125, §16, 61 Stat. 172, repealed this subchapter effective one year after June 25, 1947, and further provided that this subchapter should be deemed to remain in full force for the purpose of sustaining any proper suit, action, or other proceeding with respect to any violations, liabilities incurred, or appeals taken prior to such date of repeal or to sales, shipments, or deliveries of insecticides and fungicides exempted by the Secretary.
SUBCHAPTER II—ENVIRONMENTAL PESTICIDE CONTROL
§§135 to 135k. Omitted
Editorial Notes
Codification
Sections 135 to 135k, acts June 25, 1947, ch. 125, §§2–13, 61 Stat. 163–172; Aug. 7, 1959, Pub. L. 86–139, §2, 73 Stat. 286; May 12, 1964, Pub. L. 88–305, §§1–6, 78 Stat. 190–193; Oct. 15, 1970, Pub. L. 91–452, title II, §204, 84 Stat. 928; Dec. 30, 1970, Pub. L. 91–601, §6(b), formerly §7(b), 84 Stat. 1673, renumbered, Aug. 13, 1981, Pub. L. 97–35, title XII, §1205(c), 95 Stat. 716, which related to economic poison control, were superseded by the amendments made to act June 25, 1947, by Pub. L. 92–516, Oct. 21, 1972, 86 Stat. 975. See section 4 of Pub. L. 92–516, set out as a note under section 136 of this title. The provisions of act June 25, 1947, as amended by Pub. L. 92–516, are set out in section 136 et seq. of this title.
Section 135 provided definitions for the purposes of this subchapter.
Section 135a related to prohibited acts.
Section 135b related to registration of economic poisons.
Section 135c related to access, inspection, and use in criminal prosecutions of books and records.
Section 135d related to rules and regulations, examination of economic poisons or devices, notification to violators, certification to United States attorney, duty of attorney, and publication of judgments.
Section 135e related to exemptions from penalties.
Section 135f provided for penalties.
Section 135g related to seizure, disposal, and award of costs against claimant.
Section 135h related to refusal of admission of imports.
Section 135i related to delegation of duties.
Section 135j related to authorization of appropriations and expenditure of funds.
Section 135k related to cooperation between departments and agencies.
§136. Definitions
For purposes of this subchapter—
(a) Active ingredient
The term "active ingredient" means—
(1) in the case of a pesticide other than a plant regulator, defoliant, desiccant, or nitrogen stabilizer, an ingredient which will prevent, destroy, repel, or mitigate any pest;
(2) in the case of a plant regulator, an ingredient which, through physiological action, will accelerate or retard the rate of growth or rate of maturation or otherwise alter the behavior of ornamental or crop plants or the product thereof;
(3) in the case of a defoliant, an ingredient which will cause the leaves or foliage to drop from a plant;
(4) in the case of a desiccant, an ingredient which will artificially accelerate the drying of plant tissue; and
(5) in the case of a nitrogen stabilizer, an ingredient which will prevent or hinder the process of nitrification, denitrification, ammonia volatilization, or urease production through action affecting soil bacteria.
(b) Administrator
The term "Administrator" means the Administrator of the Environmental Protection Agency.
(c) Adulterated
The term "adulterated" applies to any pesticide if—
(1) its strength or purity falls below the professed standard of quality as expressed on its labeling under which it is sold;
(2) any substance has been substituted wholly or in part for the pesticide; or
(3) any valuable constituent of the pesticide has been wholly or in part abstracted.
(d) Animal
The term "animal" means all vertebrate and invertebrate species, including but not limited to man and other mammals, birds, fish, and shellfish.
(e) Certified applicator, etc.
(1) Certified applicator
The term "certified applicator" means any individual who is certified under section 136i of this title as authorized to use or supervise the use of any pesticide which is classified for restricted use. Any applicator who holds or applies registered pesticides, or uses dilutions of registered pesticides consistent with subsection (ee), only to provide a service of controlling pests without delivering any unapplied pesticide to any person so served is not deemed to be a seller or distributor of pesticides under this subchapter.
(2) Private applicator
The term "private applicator" means a certified applicator who uses or supervises the use of any pesticide which is classified for restricted use for purposes of producing any agricultural commodity on property owned or rented by the applicator or the applicator's employer or (if applied without compensation other than trading of personal services between producers of agricultural commodities) on the property of another person.
(3) Commercial applicator
The term "commercial applicator" means an applicator (whether or not the applicator is a private applicator with respect to some uses) who uses or supervises the use of any pesticide which is classified for restricted use for any purpose or on any property other than as provided by paragraph (2).
(4) Under the direct supervision of a certified applicator
Unless otherwise prescribed by its labeling, a pesticide shall be considered to be applied under the direct supervision of a certified applicator if it is applied by a competent person acting under the instructions and control of a certified applicator who is available if and when needed, even though such certified applicator is not physically present at the time and place the pesticide is applied.
(f) Defoliant
The term "defoliant" means any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant, with or without causing abscission.
(g) Desiccant
The term "desiccant" means any substance or mixture of substances intended for artificially accelerating the drying of plant tissue.
(h) Device
The term "device" means any instrument or contrivance (other than a firearm) which is intended for trapping, destroying, repelling, or mitigating any pest or any other form of plant or animal life (other than man and other than bacteria, virus, or other microorganism on or in living man or other living animals); but not including equipment used for the application of pesticides when sold separately therefrom.
(i) District court
The term "district court" means a United States district court, the District Court of Guam, the District Court of the Virgin Islands, and the highest court of American Samoa.
(j) Environment
The term "environment" includes water, air, land, and all plants and man and other animals living therein, and the interrelationships which exist among these.
(k) Fungus
The term "fungus" means any non-chlorophyll-bearing thallophyte (that is, any non-chlorophyll-bearing plant of a lower order than mosses and liverworts), as for example, rust, smut, mildew, mold, yeast, and bacteria, except those on or in living man or other animals and those on or in processed food, beverages, or pharmaceuticals.
(l) Imminent hazard
The term "imminent hazard" means a situation which exists when the continued use of a pesticide during the time required for cancellation proceeding would be likely to result in unreasonable adverse effects on the environment or will involve unreasonable hazard to the survival of a species declared endangered or threatened by the Secretary pursuant to the Endangered Species Act of 1973 [16 U.S.C. 1531 et seq.].
(m) Inert ingredient
The term "inert ingredient" means an ingredient which is not active.
(n) Ingredient statement
The term "ingredient statement" means a statement which contains—
(1) the name and percentage of each active ingredient, and the total percentage of all inert ingredients, in the pesticide; and
(2) if the pesticide contains arsenic in any form, a statement of the percentages of total and water soluble arsenic, calculated as elementary arsenic.
(o) Insect
The term "insect" means any of the numerous small invertebrate animals generally having the body more or less obviously segmented, for the most part belonging to the class insecta, comprising six-legged, usually winged forms, as for example, beetles, bugs, bees, flies, and to other allied classes of arthropods whose members are wingless and usually have more than six legs, as for example, spiders, mites, ticks, centipedes, and wood lice.
(p) Label and labeling
(1) Label
The term "label" means the written, printed, or graphic matter on, or attached to, the pesticide or device or any of its containers or wrappers.
(2) Labeling
The term "labeling" means all labels and all other written, printed, or graphic matter—
(A) accompanying the pesticide or device at any time; or
(B) to which reference is made on the label or in literature accompanying the pesticide or device, except to current official publications of the Environmental Protection Agency, the United States Departments of Agriculture and Interior, the Department of Health and Human Services, State experiment stations, State agricultural colleges, and other similar Federal or State institutions or agencies authorized by law to conduct research in the field of pesticides.
(q) Misbranded
(1) A pesticide is misbranded if—
(A) its labeling bears any statement, design, or graphic representation relative thereto or to its ingredients which is false or misleading in any particular;
(B) it is contained in a package or other container or wrapping which does not conform to the standards established by the Administrator pursuant to section 136w(c)(3) of this title;
(C) it is an imitation of, or is offered for sale under the name of, another pesticide;
(D) its label does not bear the registration number assigned under section 136e of this title to each establishment in which it was produced;
(E) any word, statement, or other information required by or under authority of this subchapter to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or graphic matter in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;
(F) the labeling accompanying it does not contain directions for use which are necessary for effecting the purpose for which the product is intended and if complied with, together with any requirements imposed under section 136a(d) of this title, are adequate to protect health and the environment;
(G) the label does not contain a warning or caution statement which may be necessary and if complied with, together with any requirements imposed under section 136a(d) of this title, is adequate to protect health and the environment; or
(H) in the case of a pesticide not registered in accordance with section 136a of this title and intended for export, the label does not contain, in words prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or graphic matter in the labeling) as to render it likely to be noted by the ordinary individual under customary conditions of purchase and use, the following: "Not Registered for Use in the United States of America".
(2) A pesticide is misbranded if—
(A) the label does not bear an ingredient statement on that part of the immediate container (and on the outside container or wrapper of the retail package, if there be one, through which the ingredient statement on the immediate container cannot be clearly read) which is presented or displayed under customary conditions of purchase, except that a pesticide is not misbranded under this subparagraph if—
(i) the size or form of the immediate container, or the outside container or wrapper of the retail package, makes it impracticable to place the ingredient statement on the part which is presented or displayed under customary conditions of purchase; and
(ii) the ingredient statement appears prominently on another part of the immediate container, or outside container or wrapper, permitted by the Administrator;
(B) the labeling does not contain a statement of the use classification under which the product is registered;
(C) there is not affixed to its container, and to the outside container or wrapper of the retail package, if there be one, through which the required information on the immediate container cannot be clearly read, a label bearing—
(i) the name and address of the producer, registrant, or person for whom produced;
(ii) the name, brand, or trademark under which the pesticide is sold;
(iii) the net weight or measure of the content, except that the Administrator may permit reasonable variations; and
(iv) when required by regulation of the Administrator to effectuate the purposes of this subchapter, the registration number assigned to the pesticide under this subchapter, and the use classification; and
(D) the pesticide contains any substance or substances in quantities highly toxic to man, unless the label shall bear, in addition to any other matter required by this subchapter—
(i) the skull and crossbones;
(ii) the word "poison" prominently in red on a background of distinctly contrasting color; and
(iii) a statement of a practical treatment (first aid or otherwise) in case of poisoning by the pesticide.
(r) Nematode
The term "nematode" means invertebrate animals of the phylum nemathelminthes and class nematoda, that is, unsegmented round worms with elongated, fusiform, or saclike bodies covered with cuticle, and inhabiting soil, water, plants, or plant parts; may also be called nemas or eelworms.
(s) Person
The term "person" means any individual, partnership, association, corporation, or any organized group of persons whether incorporated or not.
(t) Pest
The term "pest" means (1) any insect, rodent, nematode, fungus, weed, or (2) any other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other micro-organism (except viruses, bacteria, or other micro-organisms on or in living man or other living animals) which the Administrator declares to be a pest under section 136w(c)(1) of this title.
(u) Pesticide
The term "pesticide" means (1) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, (2) any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant, and (3) any nitrogen stabilizer, except that the term "pesticide" shall not include any article that is a "new animal drug" within the meaning of section 321(w) 1 of title 21, that has been determined by the Secretary of Health and Human Services not to be a new animal drug by a regulation establishing conditions of use for the article, or that is an animal feed within the meaning of section 321(x) 1 of title 21 bearing or containing a new animal drug. The term "pesticide" does not include liquid chemical sterilant products (including any sterilant or subordinate disinfectant claims on such products) for use on a critical or semi-critical device, as defined in section 321 of title 21. For purposes of the preceding sentence, the term "critical device" includes any device which is introduced directly into the human body, either into or in contact with the bloodstream or normally sterile areas of the body and the term "semi-critical device" includes any device which contacts intact mucous membranes but which does not ordinarily penetrate the blood barrier or otherwise enter normally sterile areas of the body.
(v) Plant regulator
The term "plant regulator" means any substance or mixture of substances intended, through physiological action, for accelerating or retarding the rate of growth or rate of maturation, or for otherwise altering the behavior of plants or the produce thereof, but shall not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, and soil amendments. Also, the term "plant regulator" shall not be required to include any of such of those nutrient mixtures or soil amendments as are commonly known as vitamin-hormone horticultural products, intended for improvement, maintenance, survival, health, and propagation of plants, and as are not for pest destruction and are nontoxic, nonpoisonous in the undiluted packaged concentration.
(w) Producer and produce
The term "producer" means the person who manufactures, prepares, compounds, propagates, or processes any pesticide or device or active ingredient used in producing a pesticide. The term "produce" means to manufacture, prepare, compound, propagate, or process any pesticide or device or active ingredient used in producing a pesticide. The dilution by individuals of formulated pesticides for their own use and according to the directions on registered labels shall not of itself result in such individuals being included in the definition of "producer" for the purposes of this subchapter.
(x) Protect health and the environment
The terms "protect health and the environment" and "protection of health and the environment" mean protection against any unreasonable adverse effects on the environment.
(y) Registrant
The term "registrant" means a person who has registered any pesticide pursuant to the provisions of this subchapter.
(z) Registration
The term "registration" includes reregistration.
(aa) State
The term "State" means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Trust Territory of the Pacific Islands, and American Samoa.
(bb) Unreasonable adverse effects on the environment
The term "unreasonable adverse effects on the environment" means (1) any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide, or (2) a human dietary risk from residues that result from a use of a pesticide in or on any food inconsistent with the standard under section 346a of title 21. The Administrator shall consider the risks and benefits of public health pesticides separate from the risks and benefits of other pesticides. In weighing any regulatory action concerning a public health pesticide under this subchapter, the Administrator shall weigh any risks of the pesticide against the health risks such as the diseases transmitted by the vector to be controlled by the pesticide.
(cc) Weed
The term "weed" means any plant which grows where not wanted.
(dd) Establishment
The term "establishment" means any place where a pesticide or device or active ingredient used in producing a pesticide is produced, or held, for distribution or sale.
(ee) To use any registered pesticide in a manner inconsistent with its labeling
The term "to use any registered pesticide in a manner inconsistent with its labeling" means to use any registered pesticide in a manner not permitted by the labeling, except that the term shall not include (1) applying a pesticide at any dosage, concentration, or frequency less than that specified on the labeling unless the labeling specifically prohibits deviation from the specified dosage, concentration, or frequency, (2) applying a pesticide against any target pest not specified on the labeling if the application is to the crop, animal, or site specified on the labeling, unless the Administrator has required that the labeling specifically state that the pesticide may be used only for the pests specified on the labeling after the Administrator has determined that the use of the pesticide against other pests would cause an unreasonable adverse effect on the environment, (3) employing any method of application not prohibited by the labeling unless the labeling specifically states that the product may be applied only by the methods specified on the labeling, (4) mixing a pesticide or pesticides with a fertilizer when such mixture is not prohibited by the labeling, (5) any use of a pesticide in conformance with section 136c, 136p, or 136v of this title, or (6) any use of a pesticide in a manner that the Administrator determines to be consistent with the purposes of this subchapter. After March 31, 1979, the term shall not include the use of a pesticide for agricultural or forestry purposes at a dilution less than label dosage unless before or after that date the Administrator issues a regulation or advisory opinion consistent with the study provided for in section 27(b) of the Federal Pesticide Act of 1978, which regulation or advisory opinion specifically requires the use of definite amounts of dilution.
(ff) Outstanding data requirement
(1) In general
The term "outstanding data requirement" means a requirement for any study, information, or data that is necessary to make a determination under section 136a(c)(5) of this title and which study, information, or data—
(A) has not been submitted to the Administrator; or
(B) if submitted to the Administrator, the Administrator has determined must be resubmitted because it is not valid, complete, or adequate to make a determination under section 136a(c)(5) of this title and the regulations and guidelines issued under such section.
(2) Factors
In making a determination under paragraph (1)(B) respecting a study, the Administrator shall examine, at a minimum, relevant protocols, documentation of the conduct and analysis of the study, and the results of the study to determine whether the study and the results of the study fulfill the data requirement for which the study was submitted to the Administrator.
(gg) To distribute or sell
The term "to distribute or sell" means to distribute, sell, offer for sale, hold for distribution, hold for sale, hold for shipment, ship, deliver for shipment, release for shipment, or receive and (having so received) deliver or offer to deliver. The term does not include the holding or application of registered pesticides or use dilutions thereof by any applicator who provides a service of controlling pests without delivering any unapplied pesticide to any person so served.
(hh) Nitrogen stabilizer
The term "nitrogen stabilizer" means any substance or mixture of substances intended for preventing or hindering the process of nitrification, denitrification, ammonia volatilization, or urease production through action upon soil bacteria. Such term shall not include—
(1) dicyandiamide;
(2) ammonium thiosulfate; or
(3) any substance or mixture of substances.— 2
(A) that was not registered pursuant to section 136a of this title prior to January 1, 1992; and
(B) that was in commercial agronomic use prior to January 1, 1992, with respect to which after January 1, 1992, the distributor or seller of the substance or mixture has made no specific claim of prevention or hindering of the process of nitrification, denitrification, ammonia volatilization 3 urease production regardless of the actual use or purpose for, or future use or purpose for, the substance or mixture.
Statements made in materials required to be submitted to any State legislative or regulatory authority, or required by such authority to be included in the labeling or other literature accompanying any such substance or mixture shall not be deemed a specific claim within the meaning of this subsection.
(jj) 4 Maintenance applicator
The term "maintenance applicator" means any individual who, in the principal course of such individual's employment, uses, or supervises the use of, a pesticide not classified for restricted use (other than a ready to use consumer products pesticide); for the purpose of providing structural pest control or lawn pest control including janitors, general maintenance personnel, sanitation personnel, and grounds maintenance personnel. The term "maintenance applicator" does not include private applicators as defined in subsection (e)(2); individuals who use antimicrobial pesticides, sanitizers or disinfectants; individuals employed by Federal, State, and local governments or any political subdivisions thereof, or individuals who use pesticides not classified for restricted use in or around their homes, boats, sod farms, nurseries, greenhouses, or other noncommercial property.
(kk) Service technician
The term "service technician" means any individual who uses or supervises the use of pesticides (other than a ready to use consumer products pesticide) for the purpose of providing structural pest control or lawn pest control on the property of another for a fee. The term "service technician" does not include individuals who use antimicrobial pesticides, sanitizers or disinfectants; or who otherwise apply ready to use consumer products pesticides.
(ll) Minor use
The term "minor use" means the use of a pesticide on an animal, on a commercial agricultural crop or site, or for the protection of public health where—
(1) the total United States acreage for the crop is less than 300,000 acres, as determined by the Secretary of Agriculture; or
(2) the Administrator, in consultation with the Secretary of Agriculture, determines that, based on information provided by an applicant for registration or a registrant, the use does not provide sufficient economic incentive to support the initial registration or continuing registration of a pesticide for such use and—
(A) there are insufficient efficacious alternative registered pesticides available for the use;
(B) the alternatives to the pesticide use pose greater risks to the environment or human health;
(C) the minor use pesticide plays or will play a significant part in managing pest resistance; or
(D) the minor use pesticide plays or will play a significant part in an integrated pest management program.
The status as a minor use under this subsection shall continue as long as the Administrator has not determined that, based on existing data, such use may cause an unreasonable adverse effect on the environment and the use otherwise qualifies for such status.
(mm) Antimicrobial pesticide
(1) In general
The term "antimicrobial pesticide" means a pesticide that—
(A) is intended to—
(i) disinfect, sanitize, reduce, or mitigate growth or development of microbiological organisms; or
(ii) protect inanimate objects, industrial processes or systems, surfaces, water, or other chemical substances from contamination, fouling, or deterioration caused by bacteria, viruses, fungi, protozoa, algae, or slime; and
(B) in the intended use is exempt from, or otherwise not subject to, a tolerance under section 346a of title 21 or a food additive regulation under section 348 of title 21.
(2) Excluded products
The term "antimicrobial pesticide" does not include—
(A) a wood preservative or antifouling paint product for which a claim of pesticidal activity other than or in addition to an activity described in paragraph (1) is made;
(B) an agricultural fungicide product; or
(C) an aquatic herbicide product.
(3) Included products
The term "antimicrobial pesticide" does include any other chemical sterilant product (other than liquid chemical sterilant products exempt under subsection (u)), any other disinfectant product, any other industrial microbiocide product, and any other preservative product that is not excluded by paragraph (2).
(nn) Public health pesticide
The term "public health pesticide" means any minor use pesticide product registered for use and used predominantly in public health programs for vector control or for other recognized health protection uses, including the prevention or mitigation of viruses, bacteria, or other microorganisms (other than viruses, bacteria, or other microorganisms on or in living man or other living animal) that pose a threat to public health.
(oo) Vector
The term "vector" means any organism capable of transmitting the causative agent of human disease or capable of producing human discomfort or injury, including mosquitoes, flies, fleas, cockroaches, or other insects and ticks, mites, or rats.
(June 25, 1947, ch. 125, §2, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 975; amended Pub. L. 93–205, §13(f), Dec. 28, 1973, 87 Stat. 903; Pub. L. 94–140, §9, Nov. 28, 1975, 89 Stat. 754; Pub. L. 95–396, §1, Sept. 30, 1978, 92 Stat. 819; Pub. L. 100–532, title I, §101, title VI, §601(a), title VIII, §801(a), Oct. 25, 1988, 102 Stat. 2655, 2677, 2679; Pub. L. 102–237, title X, §1006(a)(1), (2), (b)(3)(A), (B), Dec. 13, 1991, 105 Stat. 1894, 1895; Pub. L. 104–170, title I, §§105(a), 120, title II, §§210(a), 221, 230, title III, §304, Aug. 3, 1996, 110 Stat. 1490, 1492, 1493, 1502, 1508, 1512.)
Editorial Notes
References in Text
The Endangered Species Act of 1973, referred to in subsec. (l), is Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, which is classified generally to chapter 35 (§1531 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of Title 16 and Tables.
Section 321 of title 21, referred to in subsec. (u), was subsequently amended, and subsecs. (w) and (x) of section 321 no longer define the terms "new animal drug" and "animal feed", respectively. However, such terms are defined elsewhere in that section.
Section 27(b) of Federal Pesticide Act of 1978, referred to in subsec. (ee), is section 27(b) of Pub. L. 95–396, Sept. 30, 1978, 92 Stat. 841, which was formerly set out as a note under section 136w–4 of this title.
Prior Provisions
A prior section 2 of act June 25, 1947, was classified to section 135 of this title prior to amendment of act June 25, 1947, by Pub. L. 92–516.
Amendments
1996—Subsec. (a)(1). Pub. L. 104–170, §105(a)(1)(A), substituted "defoliant, desiccant, or nitrogen stabilizer" for "defoliant, or desiccant".
Subsec. (a)(5). Pub. L. 104–170, §105(a)(1)(B)–(D), added par. (5).
Subsec. (u). Pub. L. 104–170, §§105(a)(2), 221(1), struck out "and" before "(2)", inserted "and (3) any nitrogen stabilizer," after "desiccant,", and inserted at end "The term 'pesticide' does not include liquid chemical sterilant products (including any sterilant or subordinate disinfectant claims on such products) for use on a critical or semi-critical device, as defined in section 321 of title 21. For purposes of the preceding sentence, the term 'critical device' includes any device which is introduced directly into the human body, either into or in contact with the bloodstream or normally sterile areas of the body and the term 'semi-critical device' includes any device which contacts intact mucous membranes but which does not ordinarily penetrate the blood barrier or otherwise enter normally sterile areas of the body."
Subsec. (bb). Pub. L. 104–170, §304, which directed amendment of section 2(bb) by inserting "(1)" after "means" and adding cl. (2), without specifying the Act being amended, was executed to this subsection, which is section 2(bb) of the Federal Insecticide, Fungicide, and Rodenticide Act, to reflect the probable intent of Congress.
Pub. L. 104–170, §230(a), inserted at end "The Administrator shall consider the risks and benefits of public health pesticides separate from the risks and benefits of other pesticides. In weighing any regulatory action concerning a public health pesticide under this subchapter, the Administrator shall weigh any risks of the pesticide against the health risks such as the diseases transmitted by the vector to be controlled by the pesticide."
Subsec. (hh). Pub. L. 104–170, §105(a)(3), added subsec. (hh).
Subsecs. (jj), (kk). Pub. L. 104–170, §120, added subsecs. (jj) and (kk).
Subsec. (ll). Pub. L. 104–170, §210(a), added subsec. (ll).
Subsec. (mm). Pub. L. 104–170, §221(2), added subsec. (mm).
Subsecs. (nn), (oo). Pub. L. 104–170, §230(b), added subsecs. (nn) and (oo).
1991—Subsec. (e)(1). Pub. L. 102–237, §1006(a)(1), substituted "section 136i" for "section 136b" and "uses dilutions" for "use dilutions" and made technical amendment to reference to subsection (ee) of this section involving corresponding provision of original act.
Subsec. (e)(2). Pub. L. 102–237, §1006(b)(3)(A), substituted "the applicator or the applicator's" for "him or his".
Subsec. (e)(3). Pub. L. 102–237, §1006(b)(3)(B), substituted "the applicator" for "he".
Subsec. (q)(2)(A)(i). Pub. L. 102–237, §1006(a)(2), substituted "size or form" for "size of form".
1988—Subsec. (c). Pub. L. 100–532, §801(a)(1), substituted "if—" for "if:".
Subsec. (p)(2)(B). Pub. L. 100–532, §801(a)(2), substituted "Health and Human Services" for "Health, Education, and Welfare".
Subsec. (q)(2)(A). Pub. L. 100–532, §801(a)(3), substituted "if—" for "if:".
Subsec. (q)(2)(C)(iii). Pub. L. 100–532, §801(a)(4), substituted ", except that" for ": Provided, That".
Subsec. (u). Pub. L. 100–532, §801(a)(5), substituted ", except that" for ": Provided, That", struck out "(1)(a)" after "include any article" and "or (b)" after "section 321(w) of title 21,", and substituted "Health and Human Services" for "Health, Education, and Welfare", "or that is" for "or (2) that is", and "a new animal drug" for "an article covered by clause (1) of this proviso".
Subsec. (ee). Pub. L. 100–532, §§601(a)(1), 801(a)(6), substituted ", except that" for ": Provided, That", inserted "unless the labeling specifically prohibits deviation from the specified dosage, concentration, or frequency" and "unless the labeling specifically states that the product may be applied only by the methods specified on the labeling", substituted "labeling, (4) mixing" for "labeling, or (4) mixing", ", (5)" for ": Provided further, That the term also shall not include", "or (6) any use" for "or any use", and ". After" for ": And provided further, That after".
Subsec. (ff). Pub. L. 100–532, §101, added subsec. (ff).
Subsec. (gg). Pub. L. 100–532, §601(a)(2), added subsec. (gg).
1978—Subsec. (e)(1). Pub. L. 95–396, §1(1), inserted provision deeming an applicator not a seller or distributor of pesticides when providing a service of controlling pests.
Subsec. (e)(3). Pub. L. 95–396, §1(2), substituted "an applicator" for "a certified applicator".
Subsec. (q)(1)(H). Pub. L. 95–396, §1(3), added subpar. (H).
Subsec. (w). Pub. L. 95–396, §1(4), (5), amended definition of "producer" and "produce" to include reference to active ingredient used in producing a pesticide and inserted provision that an individual did not become a producer when there was dilution of a pesticide for personal use according to directions on registered labels.
Subsec. (dd). Pub. L. 95–396, §1(6), inserted "or active ingredient used in producing a pesticide".
Subsec. (ee). Pub. L. 95–396, §1(7), added subsec. (ee).
1975—Subsec. (u). Pub. L. 94–140 inserted proviso which excluded from term "pesticide" any article designated as "new animal drug" and any article denominated as animal feed.
1973—Subsec. (l). Pub. L. 93–205 substituted "or threatened by the Secretary pursuant to the Endangered Species Act of 1973" for "by the Secretary of the Interior under Public Law 91–135".
Statutory Notes and Related Subsidiaries
Effective Date of 1988 Amendment
Pub. L. 100–532, title IX, §901, Oct. 25, 1988, 102 Stat. 2688, provided that: "Except as otherwise provided in this Act, the amendments made by this Act [see Short Title of 1988 Amendment note below] shall take effect on the expiration of 60 days after the date of enactment of this Act [Oct. 25, 1988]."
Effective Date of 1973 Amendment
Amendment by Pub. L. 93–205 effective Dec. 28, 1973, see section 16 of Pub. L. 93–205, set out as an Effective Date note under section 1531 of Title 16, Conservation.
Effective Date
Pub. L. 92–516, §4, Oct. 21, 1972, 86 Stat. 998, as amended by Pub. L. 94–140, §4, Nov. 28, 1975, 89 Stat. 752; Pub. L. 95–396, §28, Sept. 30, 1978, 92 Stat. 842, provided that:
"(a) Except as otherwise provided in the Federal Insecticide, Fungicide, and Rodenticide Act [this subchapter], as amended by this Act and as otherwise provided by this section, the amendments made by this Act [see Short Title note set out below] shall take effect at the close of the date of the enactment of this Act [Oct. 21, 1972], provided if regulations are necessary for the implementation of any provision that becomes effective on the date of enactment, such regulations shall be promulgated and shall become effective within 90 days from the date of enactment of this Act.
"(b) The provisions of the Federal Insecticide, Fungicide, and Rodenticide Act [this subchapter] and the regulations thereunder as such existed prior to the enactment of this Act shall remain in effect until superseded by the amendments made by this Act and regulations thereunder.
"(c)(1) Two years after the enactment of this Act the Administrator shall have promulgated regulations providing for the registration and classification of pesticides under the provisions of this Act and thereafter shall register all new applications under such provisions.
"(2) Any requirements that a pesticide be registered for use only by a certified applicator shall not be effective until five years from the date of enactment of this Act.
"(3) A period of five years from date of enactment shall be provided for certification of applicators.
"(A) One year after the enactment of this Act the Administrator shall have prescribed the standards for the certification of applicators.
"(B) Each State desiring to certify applicators shall submit a State plan to the Administrator for the purpose provided by section 4(b).
"(C) As promptly as possible but in no event more than one year after submission of a State plan, the Administrator shall approve the State plan or disapprove it and indicate the reasons for disapproval. Consideration of plans resubmitted by States shall be expedited.
"(4) One year after the enactment of this Act the Administrator shall have promulgated and shall make effective regulations relating to the registration of establishments, permits for experimental use, and the keeping of books and records under the provisions of this Act.
"(d) No person shall be subject to any criminal or civil penalty imposed by the Federal Insecticide, Fungicide, and Rodenticide Act, as amended by this Act, for any act (or failure to act) occurring before the expiration of 60 days after the Administrator has published effective regulations in the Federal Register and taken such other action as may be necessary to permit compliance with the provisions under which the penalty is to be imposed.
"(e) For purposes of determining any criminal or civil penalty or liability to any third person in respect of any act or omission occurring before the expiration of the periods referred to in this section, the Federal Insecticide, Fungicide, and Rodenticide Act shall be treated as continuing in effect as if this Act had not been enacted."
Short Title of 2022 Amendment
Pub. L. 117–328, div. HH, title VI, §701, Dec. 29, 2022, 136 Stat. 5996, provided that: "This title [amending sections 136a, 136a–1, and 136w–8 of this title and section 346a of Title 21, Food and Drugs, and enacting provisions set out as notes under sections 136a, 136a–1, and 136w of this title] may be cited as the 'Pesticide Registration Improvement Act of 2022'."
Short Title of 2019 Amendment
Pub. L. 116–8, §1(a), Mar. 8, 2019, 133 Stat. 484, provided that: "This Act [amending sections 136a–1, 136c, and 136w–8 of this title and section 346a of Title 21, Food and Drugs, and enacting provisions set out as a note under section 136w of this title] may be cited as the 'Pesticide Registration Improvement Extension Act of 2018'."
Short Title of 2012 Amendment
Pub. L. 112–177, §1, Sept. 28, 2012, 126 Stat. 1327, provided that: "This Act [amending sections 136a–1 and 136w–8 of this title and section 346a of Title 21, Food and Drugs, and enacting provisions set out as notes under section 136a–1 of this title] may be cited as the 'Pesticide Registration Improvement Extension Act of 2012'."
Short Title of 2007 Amendment
Pub. L. 110–94, §1, Oct. 9, 2007, 121 Stat. 1000, provided that: "This Act [amending sections 136a, 136a–1, and 136w–8 of this title and section 346a of Title 21, Food and Drugs, and enacting provisions set out as a note under section 136a of this title] may be cited as the 'Pesticide Registration Improvement Renewal Act'."
Short Title of 2004 Amendment
Pub. L. 108–199, div. G, title V, §501(a), Jan. 23, 2004, 118 Stat. 419, provided that: "This section [enacting section 136w–8 of this title, amending sections 136a, 136a–1, 136x, and 136y of this title, and enacting provisions set out as notes under section 136a of this title and section 346a of Title 21, Food and Drugs] may be cited as the 'Pesticide Registration Improvement Act of 2003'."
Short Title of 1996 Amendment
Pub. L. 104–170, §1, Aug. 3, 1996, 110 Stat. 1489, provided that: "This Act [enacting sections 136i–2, 136r–1, and 136w–5 to 136w–7 of this title, amending this section, sections 136a, 136a–1, 136d, 136q, 136s, 136w, 136w–3, 136x, and 136y of this title, and sections 321, 331, 333, 342, and 346a of Title 21, Food and Drugs, and enacting provisions set out as notes under section 136i–2 of this title and sections 301 and 346a of Title 21] may be cited as the 'Food Quality Protection Act of 1996'."
[Another Food Quality Protection Act of 1996 was enacted by Pub. L. 104–170, title IV, 110 Stat. 1513, see section 401(a) of Pub. L. 104–170, set out as a note under section 301 of Title 21, Food and Drugs.]
Short Title of 1988 Amendment
Pub. L. 100–532, §1(a), Oct. 25, 1988, 102 Stat. 2654, provided that: "This Act [enacting section 136a–1 of this title, amending this section and sections 136a to 136d, 136f to 136q, 136s, 136v to 136w–2, and 136y of this title, and enacting provisions set out as notes under this section and sections 136m and 136y of this title] may be cited as the 'Federal Insecticide, Fungicide, and Rodenticide Act Amendments of 1988'."
Short Title of 1978 Amendment
Pub. L. 95–396, §29, Sept. 30, 1978, 92 Stat. 842, provided that: "This Act [enacting sections 136w–1 to 136w–4 of this title, amending this section and sections 136a to 136f, 136h, 136j, 136l, 136o, 136q, 136r, 136u to 136w, 136x, and 136y of this title, enacting provisions set out as notes under sections 136a, 136o, and 136w–4 of this title, and amending provisions set out as a note under this section] may be cited as the 'Federal Pesticide Act of 1978'."
Short Title
Pub. L. 92–516, §1, Oct. 21, 1972, 86 Stat. 973, provided: "That this Act [amending this subchapter generally, enacting notes set out under this section, and amending sections 1261 and 1471 of Title 15, Commerce and Trade, and sections 321 and 346a of Title 21, Foods and Drugs] may be cited as the 'Federal Environmental Pesticide Control Act of 1972'."
Act June 25, 1947, ch. 125, §1(a), as added by Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 973, provided that: "This Act [enacting this subchapter] may be cited as the 'Federal Insecticide, Fungicide, and Rodenticide Act'."
Executive Documents
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions.
Federal Compliance With Pollution Control Standards
For provisions relating to the responsibility of the head of each Executive agency for compliance with applicable pollution control standards, see Ex. Ord. No. 12088, Oct. 13, 1978, 43 F.R. 47707, set out as a note under section 4321 of Title 42, The Public Health and Welfare.
1 See References in Text note below.
2 So in original. Period probably should not appear.
3 So in original. Probably should be followed by ", or".
4 So in original. No subsec. (ii) was enacted.
§136a. Registration of pesticides
(a) Requirement of registration
Except as provided by this subchapter, no person in any State may distribute or sell to any person any pesticide that is not registered under this subchapter. To the extent necessary to prevent unreasonable adverse effects on the environment, the Administrator may by regulation limit the distribution, sale, or use in any State of any pesticide that is not registered under this subchapter and that is not the subject of an experimental use permit under section 136c of this title or an emergency exemption under section 136p of this title.
(b) Exemptions
A pesticide which is not registered with the Administrator may be transferred if—
(1) the transfer is from one registered establishment to another registered establishment operated by the same producer solely for packaging at the second establishment or for use as a constituent part of another pesticide produced at the second establishment; or
(2) the transfer is pursuant to and in accordance with the requirements of an experimental use permit.
(c) Procedure for registration
(1) Statement required
Each applicant for registration of a pesticide shall file with the Administrator a statement which includes—
(A) the name and address of the applicant and of any other person whose name will appear on the labeling;
(B) the name of the pesticide;
(C) a complete copy of the labeling of the pesticide, a statement of all claims to be made for it, and any directions for its use;
(D) the complete formula of the pesticide;
(E) a request that the pesticide be classified for general use or for restricted use, or for both; and
(F) except as otherwise provided in paragraph (2)(D), if requested by the Administrator, a full description of the tests made and the results thereof upon which the claims are based, or alternatively a citation to data that appear in the public literature or that previously had been submitted to the Administrator and that the Administrator may consider in accordance with the following provisions:
(i) With respect to pesticides containing active ingredients that are initially registered under this subchapter after September 30, 1978, data submitted to support the application for the original registration of the pesticide, or an application for an amendment adding any new use to the registration and that pertains solely to such new use, shall not, without the written permission of the original data submitter, be considered by the Administrator to support an application by another person during a period of ten years following the date the Administrator first registers the pesticide, except that such permission shall not be required in the case of defensive data.
(ii) The period of exclusive data use provided under clause (i) shall be extended 1 additional year for each 3 minor uses registered after August 3, 1996, and within 7 years of the commencement of the exclusive use period, up to a total of 3 additional years for all minor uses registered by the Administrator if the Administrator, in consultation with the Secretary of Agriculture, determines that, based on information provided by an applicant for registration or a registrant, that—
(I) there are insufficient efficacious alternative registered pesticides available for the use;
(II) the alternatives to the minor use pesticide pose greater risks to the environment or human health;
(III) the minor use pesticide plays or will play a significant part in managing pest resistance; or
(IV) the minor use pesticide plays or will play a significant part in an integrated pest management program.
The registration of a pesticide for a minor use on a crop grouping established by the Administrator shall be considered for purposes of this clause 1 minor use for each representative crop for which data are provided in the crop grouping. Any additional exclusive use period under this clause shall be modified as appropriate or terminated if the registrant voluntarily cancels the product or deletes from the registration the minor uses which formed the basis for the extension of the additional exclusive use period or if the Administrator determines that the registrant is not actually marketing the product for such minor uses.
(iii) Except as otherwise provided in clause (i), with respect to data submitted after December 31, 1969, by an applicant or registrant to support an application for registration, experimental use permit, or amendment adding a new use to an existing registration, to support or maintain in effect an existing registration, or for reregistration, the Administrator may, without the permission of the original data submitter, consider any such item of data in support of an application by any other person (hereinafter in this subparagraph referred to as the "applicant") within the fifteen-year period following the date the data were originally submitted only if the applicant has made an offer to compensate the original data submitter and submitted such offer to the Administrator accompanied by evidence of delivery to the original data submitter of the offer. The terms and amount of compensation may be fixed by agreement between the original data submitter and the applicant, or, failing such agreement, binding arbitration under this subparagraph. If, at the end of ninety days after the date of delivery to the original data submitter of the offer to compensate, the original data submitter and the applicant have neither agreed on the amount and terms of compensation nor on a procedure for reaching an agreement on the amount and terms of compensation, either person may initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint an arbitrator from the roster of arbitrators maintained by such Service. The procedure and rules of the Service shall be applicable to the selection of such arbitrator and to such arbitration proceedings, and the findings and determination of the arbitrator shall be final and conclusive, and no official or court of the United States shall have power or jurisdiction to review any such findings and determination, except for fraud, misrepresentation, or other misconduct by one of the parties to the arbitration or the arbitrator where there is a verified complaint with supporting affidavits attesting to specific instances of such fraud, misrepresentation, or other misconduct. The parties to the arbitration shall share equally in the payment of the fee and expenses of the arbitrator. If the Administrator determines that an original data submitter has failed to participate in a procedure for reaching an agreement or in an arbitration proceeding as required by this subparagraph, or failed to comply with the terms of an agreement or arbitration decision concerning compensation under this subparagraph, the original data submitter shall forfeit the right to compensation for the use of the data in support of the application. Notwithstanding any other provision of this subchapter, if the Administrator determines that an applicant has failed to participate in a procedure for reaching an agreement or in an arbitration proceeding as required by this subparagraph, or failed to comply with the terms of an agreement or arbitration decision concerning compensation under this subparagraph, the Administrator shall deny the application or cancel the registration of the pesticide in support of which the data were used without further hearing. Before the Administrator takes action under either of the preceding two sentences, the Administrator shall furnish to the affected person, by certified mail, notice of intent to take action and allow fifteen days from the date of delivery of the notice for the affected person to respond. If a registration is denied or canceled under this subparagraph, the Administrator may make such order as the Administrator deems appropriate concerning the continued sale and use of existing stocks of such pesticide. Registration action by the Administrator shall not be delayed pending the fixing of compensation.
(iv) After expiration of any period of exclusive use and any period for which compensation is required for the use of an item of data under clauses (i), (ii), and (iii), the Administrator may consider such item of data in support of an application by any other applicant without the permission of the original data submitter and without an offer having been received to compensate the original data submitter for the use of such item of data.
(v) The period of exclusive use provided under clause (ii) shall not take effect until 1 year after August 3, 1996, except where an applicant or registrant is applying for the registration of a pesticide containing an active ingredient not previously registered.
(vi) With respect to data submitted after August 3, 1996, by an applicant or registrant to support an amendment adding a new use to an existing registration that does not retain any period of exclusive use, if such data relates solely to a minor use of a pesticide, such data shall not, without the written permission of the original data submitter, be considered by the Administrator to support an application for a minor use by another person during the period of 10 years following the date of submission of such data. The applicant or registrant at the time the new minor use is requested shall notify the Administrator that to the best of their knowledge the exclusive use period for the pesticide has expired and that the data pertaining solely to the minor use of a pesticide is eligible for the provisions of this paragraph. If the minor use registration which is supported by data submitted pursuant to this subsection is voluntarily canceled or if such data are subsequently used to support a nonminor use, the data shall no longer be subject to the exclusive use provisions of this clause but shall instead be considered by the Administrator in accordance with the provisions of clause (i), as appropriate.
(G) If the applicant is requesting that the registration or amendment to the registration of a pesticide be expedited, an explanation of the basis for the request must be submitted, in accordance with paragraph (10) of this subsection.
(2) Data in support of registration
(A) In general
The Administrator shall publish guidelines specifying the kinds of information which will be required to support the registration of a pesticide and shall revise such guidelines from time to time. If thereafter the Administrator requires any additional kind of information under subparagraph (B) of this paragraph, the Administrator shall permit sufficient time for applicants to obtain such additional information. The Administrator, in establishing standards for data requirements for the registration of pesticides with respect to minor uses, shall make such standards commensurate with the anticipated extent of use, pattern of use, the public health and agricultural need for such minor use, and the level and degree of potential beneficial or adverse effects on man and the environment. The Administrator shall not require a person to submit, in relation to a registration or reregistration of a pesticide for minor agricultural use under this subchapter, any field residue data from a geographic area where the pesticide will not be registered for such use. In the development of these standards, the Administrator shall consider the economic factors of potential national volume of use, extent of distribution, and the impact of the cost of meeting the requirements on the incentives for any potential registrant to undertake the development of the required data. Except as provided by section 136h of this title, within 30 days after the Administrator registers a pesticide under this subchapter the Administrator shall make available to the public the data called for in the registration statement together with such other scientific information as the Administrator deems relevant to the Administrator's decision.
(B) Additional data
(i) If the Administrator determines that additional data are required to maintain in effect an existing registration of a pesticide, the Administrator shall notify all existing registrants of the pesticide to which the determination relates and provide a list of such registrants to any interested person.
(ii) Each registrant of such pesticide shall provide evidence within ninety days after receipt of notification that it is taking appropriate steps to secure the additional data that are required. Two or more registrants may agree to develop jointly, or to share in the cost of developing, such data if they agree and advise the Administrator of their intent within ninety days after notification. Any registrant who agrees to share in the cost of producing the data shall be entitled to examine and rely upon such data in support of maintenance of such registration. The Administrator shall issue a notice of intent to suspend the registration of a pesticide in accordance with the procedures prescribed by clause (iv) if a registrant fails to comply with this clause.
(iii) If, at the end of sixty days after advising the Administrator of their agreement to develop jointly, or share in the cost of developing, data, the registrants have not further agreed on the terms of the data development arrangement or on a procedure for reaching such agreement, any of such registrants may initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint an arbitrator from the roster of arbitrators maintained by such Service. The procedure and rules of the Service shall be applicable to the selection of such arbitrator and to such arbitration proceedings, and the findings and determination of the arbitrator shall be final and conclusive, and no official or court of the United States shall have power or jurisdiction to review any such findings and determination, except for fraud, misrepresentation, or other misconduct by one of the parties to the arbitration or the arbitrator where there is a verified complaint with supporting affidavits attesting to specific instances of such fraud, misrepresentation, or other misconduct. All parties to the arbitration shall share equally in the payment of the fee and expenses of the arbitrator. The Administrator shall issue a notice of intent to suspend the registration of a pesticide in accordance with the procedures prescribed by clause (iv) if a registrant fails to comply with this clause.
(iv) Notwithstanding any other provision of this subchapter, if the Administrator determines that a registrant, within the time required by the Administrator, has failed to take appropriate steps to secure the data required under this subparagraph, to participate in a procedure for reaching agreement concerning a joint data development arrangement under this subparagraph or in an arbitration proceeding as required by this subparagraph, or to comply with the terms of an agreement or arbitration decision concerning a joint data development arrangement under this subparagraph, the Administrator may issue a notice of intent to suspend such registrant's registration of the pesticide for which additional data is required. The Administrator may include in the notice of intent to suspend such provisions as the Administrator deems appropriate concerning the continued sale and use of existing stocks of such pesticide. Any suspension proposed under this subparagraph shall become final and effective at the end of thirty days from receipt by the registrant of the notice of intent to suspend, unless during that time a request for hearing is made by a person adversely affected by the notice or the registrant has satisfied the Administrator that the registrant has complied fully with the requirements that served as a basis for the notice of intent to suspend. If a hearing is requested, a hearing shall be conducted under section 136d(d) of this title. The only matters for resolution at that hearing shall be whether the registrant has failed to take the action that served as the basis for the notice of intent to suspend the registration of the pesticide for which additional data is required, and whether the Administrator's determination with respect to the disposition of existing stocks is consistent with this subchapter. If a hearing is held, a decision after completion of such hearing shall be final. Notwithstanding any other provision of this subchapter, a hearing shall be held and a determination made within seventy-five days after receipt of a request for such hearing. Any registration suspended under this subparagraph shall be reinstated by the Administrator if the Administrator determines that the registrant has complied fully with the requirements that served as a basis for the suspension of the registration.
(v) Any data submitted under this subparagraph shall be subject to the provisions of paragraph (1)(D). Whenever such data are submitted jointly by two or more registrants, an agent shall be agreed on at the time of the joint submission to handle any subsequent data compensation matters for the joint submitters of such data.
(vi) Upon the request of a registrant the Administrator shall, in the case of a minor use, extend the deadline for the production of residue chemistry data under this subparagraph for data required solely to support that minor use until the final deadline for submission of data under section 136a–1 of this title for the other uses of the pesticide established as of August 3, 1996, if—
(I) the data to support other uses of the pesticide on a food are being provided;
(II) the registrant, in submitting a request for such an extension, provides a schedule, including interim dates to measure progress, to assure that the data production will be completed before the expiration of the extension period;
(III) the Administrator has determined that such extension will not significantly delay the Administrator's schedule for issuing a reregistration eligibility determination required under section 136a–1 of this title; and
(IV) the Administrator has determined that based on existing data, such extension would not significantly increase the risk of any unreasonable adverse effect on the environment. If the Administrator grants an extension under this clause, the Administrator shall monitor the development of the data and shall ensure that the registrant is meeting the schedule for the production of the data. If the Administrator determines that the registrant is not meeting or has not met the schedule for the production of such data, the Administrator may proceed in accordance with clause (iv) regarding the continued registration of the affected products with the minor use and shall inform the public of such action. Notwithstanding the provisions of this clause, the Administrator may take action to modify or revoke the extension under this clause if the Administrator determines that the extension for the minor use may cause an unreasonable adverse effect on the environment. In such circumstance, the Administrator shall provide, in writing to the registrant, a notice revoking the extension of time for submission of data. Such data shall instead be due in accordance with the date established by the Administrator for the submission of the data.
(vii) If the registrant does not commit to support a specific minor use of the pesticide, but is supporting and providing data in a timely and adequate fashion to support uses of the pesticide on a food, or if all uses of the pesticide are nonfood uses and the registrant does not commit to support a specific minor use of the pesticide but is supporting and providing data in a timely and adequate fashion to support other nonfood uses of the pesticide, the Administrator, at the written request of the registrant, shall not take any action pursuant to this clause in regard to such unsupported minor use until the final deadline established as of August 3, 1996, for the submission of data under section 136a–1 of this title for the supported uses identified pursuant to this clause unless the Administrator determines that the absence of the data is significant enough to cause human health or environmental concerns. On the basis of such determination, the Administrator may refuse the request for extension by the registrant. Upon receipt of the request from the registrant, the Administrator shall publish in the Federal Register a notice of the receipt of the request and the effective date upon which the uses not being supported will be voluntarily deleted from the registration pursuant to section 136d(f)(1) of this title. If the Administrator grants an extension under this clause, the Administrator shall monitor the development of the data for the uses being supported and shall ensure that the registrant is meeting the schedule for the production of such data. If the Administrator determines that the registrant is not meeting or has not met the schedule for the production of such data, the Administrator may proceed in accordance with clause (iv) of this subparagraph regarding the continued registration of the affected products with the minor and other uses and shall inform the public of such action in accordance with section 136d(f)(2) of this title. Notwithstanding the provisions of this clause, the Administrator may deny, modify, or revoke the temporary extension under this subparagraph if the Administrator determines that the continuation of the minor use may cause an unreasonable adverse effect on the environment. In the event of modification or revocation, the Administrator shall provide, in writing, to the registrant a notice revoking the temporary extension and establish a new effective date by which the minor use shall be deleted from the registration.
(viii)(I) If data required to support registration of a pesticide under subparagraph (A) is requested by a Federal or State regulatory authority, the Administrator shall, to the extent practicable, coordinate data requirements, test protocols, timetables, and standards of review and reduce burdens and redundancy caused to the registrant by multiple requirements on the registrant.
(II) The Administrator may enter into a cooperative agreement with a State to carry out subclause (I).
(III) Not later than 1 year after August 3, 1996, the Administrator shall develop a process to identify and assist in alleviating future disparities between Federal and State data requirements.
(C) Simplified procedures
Within nine months after September 30, 1978, the Administrator shall, by regulation, prescribe simplified procedures for the registration of pesticides, which shall include the provisions of subparagraph (D) of this paragraph.
(D) Exemption
No applicant for registration of a pesticide who proposes to purchase a registered pesticide from another producer in order to formulate such purchased pesticide into the pesticide that is the subject of the application shall be required to—
(i) submit or cite data pertaining to such purchased product; or
(ii) offer to pay reasonable compensation otherwise required by paragraph (1)(D) of this subsection for the use of any such data.
(E) Minor use waiver
In handling the registration of a pesticide for a minor use, the Administrator may waive otherwise applicable data requirements if the Administrator determines that the absence of such data will not prevent the Administrator from determining—
(i) the incremental risk presented by the minor use of the pesticide; and
(ii) that such risk, if any, would not be an unreasonable adverse effect on the environment.
(3) Application
(A) In general
The Administrator shall review the data after receipt of the application and shall, as expeditiously as possible, either register the pesticide in accordance with paragraph (5), or notify the applicant of the Administrator's determination that it does not comply with the provisions of the subchapter in accordance with paragraph (6).
(B) Identical or substantially similar
(i) The Administrator shall, as expeditiously as possible, review and act on any application received by the Administrator that—
(I) proposes the initial or amended registration of an end-use pesticide that, if registered as proposed, would be identical or substantially similar in composition and labeling to a currently-registered pesticide identified in the application, or that would differ in composition and labeling from such currently-registered pesticide only in ways that would not significantly increase the risk of unreasonable adverse effects on the environment; or
(II) proposes an amendment to the registration of a registered pesticide that does not require scientific review of data.
(ii) In expediting the review of an application for an action described in clause (i), the Administrator shall—
(I) review the application in accordance with section 136w–8(f)(4)(B) of this title and, if the application is found to be incomplete, reject the application;
(II) not later than the applicable decision review time established pursuant to section 136w–8(f)(4)(B) of this title, or, if no review time is established, not later than 90 days after receiving a complete application, notify the registrant if the application has been granted or denied; and
(III) if the application is denied, notify the registrant in writing of the specific reasons for the denial of the application.
(C) Minor use registration
(i) The Administrator shall, as expeditiously as possible, review and act on any complete application—
(I) that proposes the initial registration of a new pesticide active ingredient if the active ingredient is proposed to be registered solely for minor uses, or proposes a registration amendment solely for minor uses to an existing registration; or
(II) for a registration or a registration amendment that proposes significant minor uses.
(ii) For the purposes of clause (i)—
(I) the term "as expeditiously as possible" means that the Administrator shall, to the greatest extent practicable, complete a review and evaluation of all data, submitted with a complete application, within 12 months after the submission of the complete application, and the failure of the Administrator to complete such a review and evaluation under clause (i) shall not be subject to judicial review; and
(II) the term "significant minor uses" means 3 or more minor uses proposed for every nonminor use, a minor use that would, in the judgment of the Administrator, serve as a replacement for any use which has been canceled in the 5 years preceding the receipt of the application, or a minor use that in the opinion of the Administrator would avoid the reissuance of an emergency exemption under section 136p of this title for that minor use.
(D) Adequate time for submission of minor use data
If a registrant makes a request for a minor use waiver, regarding data required by the Administrator, pursuant to paragraph (2)(E), and if the Administrator denies in whole or in part such data waiver request, the registrant shall have a full-time period for providing such data. For purposes of this subparagraph, the term "full-time period" means the time period originally established by the Administrator for submission of such data, beginning with the date of receipt by the registrant of the Administrator's notice of denial.
(4) Notice of application
The Administrator shall publish in the Federal Register, promptly after receipt of the statement and other data required pursuant to paragraphs (1) and (2), a notice of each application for registration of any pesticide if it contains any new active ingredient or if it would entail a changed use pattern. The notice shall provide for a period of 30 days in which any Federal agency or any other interested person may comment.
(5) Approval of registration
The Administrator shall register a pesticide if the Administrator determines that, when considered with any restrictions imposed under subsection (d)—
(A) its composition is such as to warrant the proposed claims for it;
(B) its labeling and other material required to be submitted comply with the requirements of this subchapter;
(C) it will perform its intended function without unreasonable adverse effects on the environment; and
(D) when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment.
The Administrator shall not make any lack of essentiality a criterion for denying registration of any pesticide. Where two pesticides meet the requirements of this paragraph, one should not be registered in preference to the other. In considering an application for the registration of a pesticide, the Administrator may waive data requirements pertaining to efficacy, in which event the Administrator may register the pesticide without determining that the pesticide's composition is such as to warrant proposed claims of efficacy. If a pesticide is found to be efficacious by any State under section 136v(c) of this title, a presumption is established that the Administrator shall waive data requirements pertaining to efficacy for use of the pesticide in such State.
(6) Denial of registration
If the Administrator determines that the requirements of paragraph (5) for registration are not satisfied, the Administrator shall notify the applicant for registration of the Administrator's determination and of the Administrator's reasons (including the factual basis) therefor, and that, unless the applicant corrects the conditions and notifies the Administrator thereof during the 30-day period beginning with the day after the date on which the applicant receives the notice, the Administrator may refuse to register the pesticide. Whenever the Administrator refuses to register a pesticide, the Administrator shall notify the applicant of the Administrator's decision and of the Administrator's reasons (including the factual basis) therefor. The Administrator shall promptly publish in the Federal Register notice of such denial of registration and the reasons therefor. Upon such notification, the applicant for registration or other interested person with the concurrence of the applicant shall have the same remedies as provided for in section 136d of this title.
(7) Registration under special circumstances
Notwithstanding the provisions of paragraph (5)—
(A) The Administrator may conditionally register or amend the registration of a pesticide if the Administrator determines that (i) the pesticide and proposed use are identical or substantially similar to any currently registered pesticide and use thereof, or differ only in ways that would not significantly increase the risk of unreasonable adverse effects on the environment, and (ii) approving the registration or amendment in the manner proposed by the applicant would not significantly increase the risk of any unreasonable adverse effect on the environment. An applicant seeking conditional registration or amended registration under this subparagraph shall submit such data as would be required to obtain registration of a similar pesticide under paragraph (5). If the applicant is unable to submit an item of data because it has not yet been generated, the Administrator may register or amend the registration of the pesticide under such conditions as will require the submission of such data not later than the time such data are required to be submitted with respect to similar pesticides already registered under this subchapter.
(B) The Administrator may conditionally amend the registration of a pesticide to permit additional uses of such pesticide notwithstanding that data concerning the pesticide may be insufficient to support an unconditional amendment, if the Administrator determines that (i) the applicant has submitted satisfactory data pertaining to the proposed additional use, and (ii) amending the registration in the manner proposed by the applicant would not significantly increase the risk of any unreasonable adverse effect on the environment. Notwithstanding the foregoing provisions of this subparagraph, no registration of a pesticide may be amended to permit an additional use of such pesticide if the Administrator has issued a notice stating that such pesticide, or any ingredient thereof, meets or exceeds risk criteria associated in whole or in part with human dietary exposure enumerated in regulations issued under this subchapter, and during the pendency of any risk-benefit evaluation initiated by such notice, if (I) the additional use of such pesticide involves a major food or feed crop, or (II) the additional use of such pesticide involves a minor food or feed crop and the Administrator determines, with the concurrence of the Secretary of Agriculture, there is available an effective alternative pesticide that does not meet or exceed such risk criteria. An applicant seeking amended registration under this subparagraph shall submit such data as would be required to obtain registration of a similar pesticide under paragraph (5). If the applicant is unable to submit an item of data (other than data pertaining to the proposed additional use) because it has not yet been generated, the Administrator may amend the registration under such conditions as will require the submission of such data not later than the time such data are required to be submitted with respect to similar pesticides already registered under this subchapter.
(C) The Administrator may conditionally register a pesticide containing an active ingredient not contained in any currently registered pesticide for a period reasonably sufficient for the generation and submission of required data (which are lacking because a period reasonably sufficient for generation of the data has not elapsed since the Administrator first imposed the data requirement) on the condition that by the end of such period the Administrator receives such data and the data do not meet or exceed risk criteria enumerated in regulations issued under this subchapter, and on such other conditions as the Administrator may prescribe. A conditional registration under this subparagraph shall be granted only if the Administrator determines that use of the pesticide during such period will not cause any unreasonable adverse effect on the environment, and that use of the pesticide is in the public interest.
(8) Interim administrative review
Notwithstanding any other provision of this subchapter, the Administrator may not initiate a public interim administrative review process to develop a risk-benefit evaluation of the ingredients of a pesticide or any of its uses prior to initiating a formal action to cancel, suspend, or deny registration of such pesticide, required under this subchapter, unless such interim administrative process is based on a validated test or other significant evidence raising prudent concerns of unreasonable adverse risk to man or to the environment. Notice of the definition of the terms "validated test" and "other significant evidence" as used herein shall be published by the Administrator in the Federal Register.
(9) Labeling
(A) Additional statements
Subject to subparagraphs (B) and (C), it shall not be a violation of this subchapter for a registrant to modify the labeling of an antimicrobial pesticide product to include relevant information on product efficacy, product composition, container composition or design, or other characteristics that do not relate to any pesticidal claim or pesticidal activity.
(B) Requirements
Proposed labeling information under subparagraph (A) shall not be false or misleading, shall not conflict with or detract from any statement required by law or the Administrator as a condition of registration, and shall be substantiated on the request of the Administrator.
(C) Notification and disapproval
(i) Notification
A registration may be modified under subparagraph (A) if—
(I) the registrant notifies the Administrator in writing not later than 60 days prior to distribution or sale of a product bearing the modified labeling; and
(II) the Administrator does not disapprove of the modification under clause (ii).
(ii) Disapproval
Not later than 30 days after receipt of a notification under clause (i), the Administrator may disapprove the modification by sending the registrant notification in writing stating that the proposed language is not acceptable and stating the reasons why the Administrator finds the proposed modification unacceptable.
(iii) Restriction on sale
A registrant may not sell or distribute a product bearing a disapproved modification.
(iv) Objection
A registrant may file an objection in writing to a disapproval under clause (ii) not later than 30 days after receipt of notification of the disapproval.
(v) Final action
A decision by the Administrator following receipt and consideration of an objection filed under clause (iv) shall be considered a final agency action.
(D) Use dilution
The label or labeling required under this subchapter for an antimicrobial pesticide that is or may be diluted for use may have a different statement of caution or protective measures for use of the recommended diluted solution of the pesticide than for use of a concentrate of the pesticide if the Administrator determines that—
(i) adequate data have been submitted to support the statement proposed for the diluted solution uses; and
(ii) the label or labeling provides adequate protection for exposure to the diluted solution of the pesticide.
(10) Expedited registration of pesticides
(A) Not later than 1 year after August 3, 1996, the Administrator shall, utilizing public comment, develop procedures and guidelines, and expedite the review of an application for registration of a pesticide or an amendment to a registration that satisfies such guidelines.
(B) Any application for registration or an amendment, including biological and conventional pesticides, will be considered for expedited review under this paragraph. An application for registration or an amendment shall qualify for expedited review if use of the pesticide proposed by the application may reasonably be expected to accomplish 1 or more of the following:
(i) Reduce the risks of pesticides to human health.
(ii) Reduce the risks of pesticides to nontarget organisms.
(iii) Reduce the potential for contamination of groundwater, surface water, or other valued environmental resources.
(iv) Broaden the adoption of integrated pest management strategies, or make such strategies more available or more effective.
(C) The Administrator, not later than 30 days after receipt of an application for expedited review, shall notify the applicant whether the application is complete. If it is found to be incomplete, the Administrator may either reject the request for expedited review or ask the applicant for additional information to satisfy the guidelines developed under subparagraph (A).
(11) Interagency working group
(A) Definition of covered agency
In this paragraph, the term "covered agency" means any of the following:
(i) The Department of Agriculture.
(ii) The Department of Commerce.
(iii) The Department of the Interior.
(iv) The Council on Environmental Quality.
(v) The Environmental Protection Agency.
(B) Establishment
The Administrator shall establish an interagency working group, to be comprised of representatives from each covered agency, to provide recommendations regarding, and to implement a strategy for improving, the consultation process required under section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536) for pesticide registration and registration review.
(C) Duties
The interagency working group established under subparagraph (B) shall—
(i) analyze relevant Federal law (including regulations) and case law for purposes of providing an outline of the legal and regulatory framework for the consultation process referred to in that subparagraph, including—
(I) requirements under this subchapter and the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.);
(II) Federal case law regarding the intersection of this subchapter and the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); and
(III) Federal regulations relating to the pesticide consultation process;
(ii) provide advice regarding methods of—
(I) defining the scope of actions of the covered agencies that are subject to the consultation requirement referred to in subparagraph (B); and
(II) properly identifying and classifying effects of actions of the covered agencies with respect to that consultation requirement;
(iii) identify the obligations and limitations under Federal law of each covered agency for purposes of providing a legal and regulatory framework for developing the recommendations referred to in subparagraph (B);
(iv) review practices for the consultation referred to in subparagraph (B) to identify problem areas, areas for improvement, and best practices for conducting that consultation among the covered agencies;
(v) develop scientific and policy approaches to increase the accuracy and timeliness of the process for that consultation, in accordance with requirements of this subchapter and the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), including—
(I) processes to efficiently share data and coordinate analyses among the Department of Agriculture, the Department of Commerce, the Department of the Interior, and the Environmental Protection Agency;
(II) a streamlined process for identifying which actions require no consultation, informal consultation, or formal consultation;
(III) an approach that will provide clarity with respect to what constitutes the best scientific and commercial data available in the fields of pesticide use and ecological risk assessment, pursuant to section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 1536(a)(2)); and
(IV) approaches that enable the Environmental Protection Agency to better assist the Department of the Interior and the Department of Commerce in carrying out obligations under that section in a timely and efficient manner; and
(vi) propose and implement a strategy to implement approaches to consultations under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) and document that strategy in a memorandum of understanding, revised regulations, or another appropriate format to promote durable cooperation among the covered agencies.
(D) Reports
(i) Progress reports
(I) In general
Not later than 18 months after December 20, 2018, the Administrator, in coordination with the head of each other covered agency, shall submit to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate a report describing the progress of the working group in developing the recommendations under subparagraph (B).
(II) Requirements
The report under this clause shall—
(aa) reflect the perspectives of each covered agency; and
(bb) identify areas of new consensus and continuing topics of disagreement and debate.
(ii) Results
(I) In general
Not later than 1 year after December 20, 2018, the Administrator, in coordination with the head of each other covered agency, shall submit to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate a report describing—
(aa) the recommendations developed under subparagraph (B); and
(bb) plans for implementation of those recommendations.
(II) Requirements
The report under this clause shall—
(aa) reflect the perspectives of each covered agency; and
(bb) identify areas of consensus and continuing topics of disagreement and debate, if any.
(iii) Implementation
Not later than 1 year after the date of submission of the report under clause (i), the Administrator, in coordination with the head of each other covered agency, shall submit to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate a report describing—
(I) the implementation of the recommendations referred to in that clause;
(II) the extent to which that implementation improved the consultation process referred to in subparagraph (B); and
(III) any additional recommendations for improvements to the process described in subparagraph (B).
(iv) Other reports
Not later than the date that is 180 days after the date of submission of the report under clause (iii), and not less frequently than once every 180 days thereafter during the 5-year period beginning on that date, the Administrator, in coordination with the head of each other covered agency, shall submit to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate a report describing—
(I) the implementation of the recommendations referred to in that clause;
(II) the extent to which that implementation improved the consultation process referred to in subparagraph (B); and
(III) any additional recommendations for improvements to the process described in subparagraph (B).
(E) Consultation with private sector
In carrying out the duties under this paragraph, the working group shall, as appropriate—
(i) consult with, representatives of interested industry stakeholders and nongovernmental organizations; and
(ii) take into consideration factors, such as actual and potential differences in interest between, and the views of, those stakeholders and organizations.
(F) Chapter 10 of title 5
Chapter 10 of title 5 shall not apply to the working group established under this paragraph.
(G) Savings clause
Nothing in this paragraph supersedes any provision of—
(i) this subchapter; or
(ii) the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), including the requirements under section 7 of that Act (16 U.S.C. 1536).
(d) Classification of pesticides
(1) Classification for general use, restricted use, or both
(A) As a part of the registration of a pesticide the Administrator shall classify it as being for general use or for restricted use. If the Administrator determines that some of the uses for which the pesticide is registered should be for general use and that other uses for which it is registered should be for restricted use, the Administrator shall classify it for both general use and restricted use. Pesticide uses may be classified by regulation on the initial classification, and registered pesticides may be classified prior to reregistration. If some of the uses of the pesticide are classified for general use, and other uses are classified for restricted use, the directions relating to its general uses shall be clearly separated and distinguished from those directions relating to its restricted uses. The Administrator may require that its packaging and labeling for restricted uses shall be clearly distinguishable from its packaging and labeling for general uses.
(B) If the Administrator determines that the pesticide, when applied in accordance with its directions for use, warnings and cautions and for the uses for which it is registered, or for one or more of such uses, or in accordance with a widespread and commonly recognized practice, will not generally cause unreasonable adverse effects on the environment, the Administrator will classify the pesticide, or the particular use or uses of the pesticide to which the determination applies, for general use.
(C) If the Administrator determines that the pesticide, when applied in accordance with its directions for use, warnings and cautions and for the uses for which it is registered, or for one or more of such uses, or in accordance with a widespread and commonly recognized practice, may generally cause, without additional regulatory restrictions, unreasonable adverse effects on the environment, including injury to the applicator, the Administrator shall classify the pesticide, or the particular use or uses to which the determination applies, for restricted use:
(i) If the Administrator classifies a pesticide, or one or more uses of such pesticide, for restricted use because of a determination that the acute dermal or inhalation toxicity of the pesticide presents a hazard to the applicator or other persons, the pesticide shall be applied for any use to which the restricted classification applies only by or under the direct supervision of a certified applicator.
(ii) If the Administrator classifies a pesticide, or one or more uses of such pesticide, for restricted use because of a determination that its use without additional regulatory restriction may cause unreasonable adverse effects on the environment, the pesticide shall be applied for any use to which the determination applies only by or under the direct supervision of a certified applicator, or subject to such other restrictions as the Administrator may provide by regulation. Any such regulation shall be reviewable in the appropriate court of appeals upon petition of a person adversely affected filed within 60 days of the publication of the regulation in final form.
(2) Change in classification
If the Administrator determines that a change in the classification of any use of a pesticide from general use to restricted use is necessary to prevent unreasonable adverse effects on the environment, the Administrator shall notify the registrant of such pesticide of such determination at least forty-five days before making the change and shall publish the proposed change in the Federal Register. The registrant, or other interested person with the concurrence of the registrant, may seek relief from such determination under section 136d(b) of this title.
(3) Change in classification from restricted use to general use
The registrant of any pesticide with one or more uses classified for restricted use may petition the Administrator to change any such classification from restricted to general use. Such petition shall set out the basis for the registrant's position that restricted use classification is unnecessary because classification of the pesticide for general use would not cause unreasonable adverse effects on the environment. The Administrator, within sixty days after receiving such petition, shall notify the registrant whether the petition has been granted or denied. Any denial shall contain an explanation therefor and any such denial shall be subject to judicial review under section 136n of this title.
(e) Products with same formulation and claims
Products which have the same formulation, are manufactured by the same person, the labeling of which contains the same claims, and the labels of which bear a designation identifying the product as the same pesticide may be registered as a single pesticide; and additional names and labels shall be added to the registration by supplemental statements.
(f) Miscellaneous
(1) Effect of change of labeling or formulation
If the labeling or formulation for a pesticide is changed, the registration shall be amended to reflect such change if the Administrator determines that the change will not violate any provision of this subchapter.
(2) Registration not a defense
In no event shall registration of an article be construed as a defense for the commission of any offense under this subchapter. As long as no cancellation proceedings are in effect registration of a pesticide shall be prima facie evidence that the pesticide, its labeling and packaging comply with the registration provisions of the subchapter.
(3) Authority to consult other Federal agencies
In connection with consideration of any registration or application for registration under this section, the Administrator may consult with any other Federal agency.
(4) Mixtures of nitrogen stabilizers and fertilizer products
Any mixture or other combination of—
(A) 1 or more nitrogen stabilizers registered under this subchapter; and
(B) 1 or more fertilizer products,
shall not be subject to the provisions of this section or sections 136a–1, 136c, 136e, 136m, and 136o(a)(2) of this title if the mixture or other combination is accompanied by the labeling required under this subchapter for the nitrogen stabilizer contained in the mixture or other combination, the mixture or combination is mixed or combined in accordance with such labeling, and the mixture or combination does not contain any active ingredient other than the nitrogen stabilizer.
(5) Bilingual labeling
(A) Requirement
(i) In general
Subject to clause (ii), not later than the applicable deadline described in subparagraph (B), each registered pesticide product released for shipment shall include—
(I) the translation of the parts of the labeling contained in the Spanish Translation Guide described in subparagraph (G) on the product container; or
(II) a link to such translation via scannable technology or other electronic methods readily accessible on the product label.
(ii) Exceptions
Notwithstanding clause (i)—
(I) an antimicrobial pesticide product may, in lieu of including a translation or a link under clause (i), provide a link to the safety data sheets in Spanish via scannable technology or other electronic methods readily accessible on the product label; or
(II) a non-agricultural pesticide product that is not classified by the Administrator as restricted use under subsection (d)(1)(A) may, in lieu of including a translation or a link under clause (i), provide a link to the safety data sheets in Spanish via scannable technology or other electronic methods readily accessible on the product label.
(B) Deadlines for bilingual labeling
(i) Pesticide products classified as restricted use
In the case of pesticide products classified by the Administrator as restricted use under subsection (d)(1)(A), the deadline specified in this subparagraph is the date that is 3 years following December 29, 2022.
(ii) Pesticide products not classified as restricted use
In the case of pesticide products not classified by the Administrator as restricted use under subsection (d)(1)(A), the deadline specified in this subparagraph shall be as follows:
(I) Agricultural
(aa) Acute Toxicity Category I
For agricultural pesticides classified as Acute Toxicity Category I, the date that is 3 years after December 29, 2022.
(bb) Acute Toxicity Category II
For agricultural pesticides classified as Acute Toxicity Category II, the date that is 5 years after December 29, 2022.
(II) Antimicrobial and non-agricultural
(aa) Acute Toxicity Category I
For antimicrobial and non-agricultural pesticide products classified as Acute Toxicity Category I, the date that is 4 years after December 29, 2022.
(bb) Acute Toxicity Category II
For antimicrobial and non-agricultural pesticide products classified as Acute Toxicity Category II, the date that is 6 years after December 29, 2022.
(III) Other pesticide products
With respect to pesticide products not described in subclause (I) or (II), the date that is 8 years after December 29, 2022.
(C) Implementation
(i) Non-notification
(I) In general
In carrying out this paragraph, the Administrator shall allow translations of the parts of the label of a pesticide contained in the Spanish Translation Guide described in subparagraph (G) and scannable technology or other electronic methods to be added using non-notification procedures.
(II) Non-notification procedure defined
In this clause, the term "non-notification procedure" refers to a procedure under which a change may be made to a pesticide label without notifying the Administrator.
(ii) Cooperation and consultation
In carrying out this paragraph, the Administrator shall cooperate and consult with State lead agencies for pesticide regulation for the purpose of implementing bilingual labeling as provided in this paragraph as expeditiously as possible.
(iii) End use labeling
The labeling requirements of this paragraph shall apply to end use product labels.
(iv) Incorporation timeframe
After initial translation deadlines provided in subparagraph (B), updates to the Spanish Translation Guide described in subparagraph (G) shall be incorporated into labeling on the earlier of—
(I) in the case of agricultural use pesticide labels, as determined by the Administrator—
(aa) 1 year after the date of publication of the updated Spanish Label Translation Guide described in subparagraph (G); or
(bb) the released for shipment date specified on the EPA Stamped Approved Label after the pesticide label is next changed or amended following the date of publication of the updated Spanish Label Translation Guide described in subparagraph (G); and
(II) in the case of antimicrobial and non-agricultural use pesticide labels, as determined by the Administrator—
(aa) 2 years after the date of publication of the updated Spanish Label Translation Guide described in subparagraph (G); or
(bb) the released for shipment date specified on the EPA Stamped Approved Label after the pesticide label is next changed or amended following the date of publication of the updated Spanish Label Translation Guide described in subparagraph (G).
(v) Notification of updates to the Spanish Translation Guide for Pesticide Labeling
Not later than 10 days after updating the Spanish Translation Guide described in subparagraph (G), the Administrator shall notify registrants of the update to such guide.
(D) Accessibility of bilingual labeling for farm workers
Not later than 180 days after December 29, 2022, to the maximum extent practicable, the Administrator shall seek stakeholder input on ways to make bilingual labeling required under this paragraph accessible to farm workers.
(E) Plan
Not later than 3 years after December 29, 2022, the Administrator shall implement a plan to ensure that farm workers have access to the bilingual labeling required under this paragraph.
(F) Reporting
Not later than 2 years after December 29, 2022, the Administrator shall develop and implement, and make publicly available, a plan for tracking the adoption of the bilingual labeling required under this paragraph.
(G) Spanish Translation Guide described
The Spanish Translation Guide described in this subparagraph is the Spanish Translation Guide for Pesticide Labeling issued in October 2019, as in effect on December 29, 2022, and any successor guides or amendments to such guide.
(g) Registration review
(1) General rule
(A) Periodic review
(i) In general
The registrations of pesticides are to be periodically reviewed.
(ii) Regulations
In accordance with this subparagraph, the Administrator shall by regulation establish a procedure for accomplishing the periodic review of registrations.
(iii) Initial registration review
The Administrator shall complete the registration review of each pesticide or pesticide case, which may be composed of 1 or more active ingredients and the products associated with the active ingredients, not later than the later of—
(I) October 1, 2022; or
(II) the date that is 15 years after the date on which the first pesticide containing a new active ingredient is registered.
(iv) Subsequent registration review
Not later than 15 years after the date on which the initial registration review is completed under clause (iii) and each 15 years thereafter, the Administrator shall complete a subsequent registration review for each pesticide or pesticide case.
(v) Cancellation
No registration shall be canceled as a result of the registration review process unless the Administrator follows the procedures and substantive requirements of section 136d of this title.
(B) Docketing
(i) In general
Subject to clause (ii), after meeting with 1 or more individuals that are not government employees to discuss matters relating to a registration review, the Administrator shall place in the docket minutes of the meeting, a list of attendees, and any documents exchanged at the meeting, not later than the earlier of—
(I) the date that is 45 days after the meeting; or
(II) the date of issuance of the registration review decision.
(ii) Protected information
The Administrator shall identify, but not include in the docket, any confidential business information the disclosure of which is prohibited by section 136h of this title.
(C) Limitation
Nothing in this subsection shall prohibit the Administrator from undertaking any other review of a pesticide pursuant to this subchapter.
(2) Data
(A) Submission required
The Administrator shall use the authority in subsection (c)(2)(B) to require the submission of data when such data are necessary for a registration review.
(B) Data submission, compensation, and exemption
For purposes of this subsection, the provisions of subsections (c)(1), (c)(2)(B), and (c)(2)(D) shall be utilized for and be applicable to any data required for registration review.
(h) Registration requirements for antimicrobial pesticides
(1) Evaluation of process
To the maximum extent practicable consistent with the degrees of risk presented by an antimicrobial pesticide and the type of review appropriate to evaluate the risks, the Administrator shall identify and evaluate reforms to the antimicrobial registration process that would reduce review periods existing as of August 3, 1996, for antimicrobial pesticide product registration applications and applications for amended registration of antimicrobial pesticide products, including—
(A) new antimicrobial active ingredients;
(B) new antimicrobial end-use products;
(C) substantially similar or identical antimicrobial pesticides; and
(D) amendments to antimicrobial pesticide registrations.
(2) Review time period reduction goal
Each reform identified under paragraph (1) shall be designed to achieve the goal of reducing the review period following submission of a complete application, consistent with the degree of risk, to a period of not more than—
(A) 540 days for a new antimicrobial active ingredient pesticide registration;
(B) 270 days for a new antimicrobial use of a registered active ingredient;
(C) 120 days for any other new antimicrobial product;
(D) 90 days for a substantially similar or identical antimicrobial product;
(E) 90 days for an amendment to an antimicrobial registration that does not require scientific review of data; and
(F) 120 days for an amendment to an antimicrobial registration that requires scientific review of data and that is not otherwise described in this paragraph.
(3) Implementation
(A) Proposed rulemaking
(i) Issuance
Not later than 270 days after August 3, 1996, the Administrator shall publish in the Federal Register proposed regulations to accelerate and improve the review of antimicrobial pesticide products designed to implement, to the extent practicable, the goals set forth in paragraph (2).
(ii) Requirements
Proposed regulations issued under clause (i) shall—
(I) define the various classes of antimicrobial use patterns, including household, industrial, and institutional disinfectants and sanitizing pesticides, preservatives, water treatment, and pulp and paper mill additives, and other such products intended to disinfect, sanitize, reduce, or mitigate growth or development of microbiological organisms, or protect inanimate objects, industrial processes or systems, surfaces, water, or other chemical substances from contamination, fouling, or deterioration caused by bacteria, viruses, fungi, protozoa, algae, or slime;
(II) differentiate the types of review undertaken for antimicrobial pesticides;
(III) conform the degree and type of review to the risks and benefits presented by antimicrobial pesticides and the function of review under this subchapter, considering the use patterns of the product, toxicity, expected exposure, and product type;
(IV) ensure that the registration process is sufficient to maintain antimicrobial pesticide efficacy and that antimicrobial pesticide products continue to meet product performance standards and effectiveness levels for each type of label claim made; and
(V) implement effective and reliable deadlines for process management.
(iii) Comments
In developing the proposed regulations, the Administrator shall solicit the views from registrants and other affected parties to maximize the effectiveness of the rule development process.
(B) Final regulations
(i) Issuance
The Administrator shall issue final regulations not later than 240 days after the close of the comment period for the proposed regulations.
(ii) Failure to meet goal
If a goal described in paragraph (2) is not met by the final regulations, the Administrator shall identify the goal, explain why the goal was not attained, describe the element of the regulations included instead, and identify future steps to attain the goal.
(iii) Requirements
In issuing final regulations, the Administrator shall—
(I) consider the establishment of a certification process for regulatory actions involving risks that can be responsibly managed, consistent with the degree of risk, in the most cost-efficient manner;
(II) consider the establishment of a certification process by approved laboratories as an adjunct to the review process;
(III) use all appropriate and cost-effective review mechanisms, including—
(aa) expanded use of notification and non-notification procedures;
(bb) revised procedures for application review; and
(cc) allocation of appropriate resources to ensure streamlined management of antimicrobial pesticide registrations; and
(IV) clarify criteria for determination of the completeness of an application.
(C) Expedited review
This subsection does not affect the requirements or extend the deadlines or review periods contained in subsection (c)(3).
(D) Alternative review periods
If the final regulations to carry out this paragraph are not effective 630 days after August 3, 1996, until the final regulations become effective, the review period, beginning on the date of receipt by the Agency of a complete application, shall be—
(i) 2 years for a new antimicrobial active ingredient pesticide registration;
(ii) 1 year for a new antimicrobial use of a registered active ingredient;
(iii) 180 days for any other new antimicrobial product;
(iv) 90 days for a substantially similar or identical antimicrobial product;
(v) 90 days for an amendment to an antimicrobial registration that does not require scientific review of data; and
(vi) 120 days for an amendment to an antimicrobial registration that requires scientific review of data and that is not otherwise described in this subparagraph.
(E) Wood preservatives
An application for the registration, or for an amendment to the registration, of a wood preservative product for which a claim of pesticidal activity listed in section 136(mm) of this title is made (regardless of any other pesticidal claim that is made with respect to the product) shall be reviewed by the Administrator within the same period as that established under this paragraph for an antimicrobial pesticide product application, consistent with the degree of risk posed by the use of the wood preservative product, if the application requires the applicant to satisfy the same data requirements as are required to support an application for a wood preservative product that is an antimicrobial pesticide.
(F) Notification
(i) In general
Subject to clause (iii), the Administrator shall notify an applicant whether an application has been granted or denied not later than the final day of the appropriate review period under this paragraph, unless the applicant and the Administrator agree to a later date.
(ii) Final decision
If the Administrator fails to notify an applicant within the period of time required under clause (i), the failure shall be considered an agency action unlawfully withheld or unreasonably delayed for purposes of judicial review under chapter 7 of title 5.
(iii) Exemption
This subparagraph does not apply to an application for an antimicrobial pesticide that is filed under subsection (c)(3)(B) prior to 90 days after August 3, 1996.
(iv) Limitation
Notwithstanding clause (ii), the failure of the Administrator to notify an applicant for an amendment to a registration for an antimicrobial pesticide shall not be judicially reviewable in a Federal or State court if the amendment requires scientific review of data within—
(I) the time period specified in subparagraph (D)(vi), in the absence of a final regulation under subparagraph (B); or
(II) the time period specified in paragraph (2)(F), if adopted in a final regulation under subparagraph (B).
(4) Annual report
(A) Submission
Beginning on August 3, 1996, and ending on the date that the goals under paragraph (2) are achieved, the Administrator shall, not later than March 1 of each year, prepare and submit an annual report to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate.
(B) Requirements
A report submitted under subparagraph (A) shall include a description of—
(i) measures taken to reduce the backlog of pending registration applications;
(ii) progress toward achieving reforms under this subsection; and
(iii) recommendations to improve the activities of the Agency pertaining to antimicrobial registrations.
(June 25, 1947, ch. 125, §3, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 979; amended Pub. L. 94–140, §12, Nov. 28, 1975, 89 Stat. 755; Pub. L. 95–396, §§2(a), 3–8, Sept. 30, 1978, 92 Stat. 820, 824-827; Pub. L. 100–532, title I, §§102(b), 103, title VI, §601(b)(1), title VIII, §801(b), Oct. 25, 1988, 102 Stat. 2667, 2677, 2680; Pub. L. 101–624, title XIV, §1492, Nov. 28, 1990, 104 Stat. 3628; Pub. L. 102–237, title X, §1006(a)(3), (b)(1), (2), (c), Dec. 13, 1991, 105 Stat. 1894–1896; Pub. L. 104–170, title I, §§105(b), 106(b), title II, §§210(b), (c)(1), (d), (e), (f)(2), 222–224, 231, 250, Aug. 3, 1996, 110 Stat. 1491, 1494-1497, 1499, 1503, 1504, 1508, 1510; Pub. L. 108–199, div. G, title V, §501(b), Jan. 23, 2004, 118 Stat. 419; Pub. L. 110–94, §§2, 3, Oct. 9, 2007, 121 Stat. 1000; Pub. L. 115–334, title X, §10115, Dec. 20, 2018, 132 Stat. 4914; Pub. L. 117–286, §4(a)(21), Dec. 27, 2022, 136 Stat. 4307; Pub. L. 117–328, div. HH, title VI, §702, Dec. 29, 2022, 136 Stat. 5996.)
Editorial Notes
References in Text
The Endangered Species Act of 1973, referred to in subsec. (c)(11)(C)(i)(I), (II), (v), (vi), (G)(ii), is Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, which is classified generally to chapter 35 (§1531 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of Title 16 and Tables.
Prior Provisions
A prior section 3 of act June 25, 1947, was classified to section 135a of this title prior to amendment of act June 25, 1947, by Pub. L. 92–516.
Amendments
2022—Subsec. (c)(11)(F). Pub. L. 117–286 substituted "Chapter 10 of title 5" for "Federal Advisory Committee Act" in heading and "Chapter 10 of title 5" for "The Federal Advisory Committee Act (5 U.S.C. App.)" in text.
Subsec. (f)(5). Pub. L. 117–328 added par. (5).
2018—Subsec. (c)(11). Pub. L. 115–334 added par. (11).
2007—Subsec. (c)(3)(B)(ii)(I). Pub. L. 110–94, §2(1), substituted "review the application in accordance with section 136w–8(f)(4)(B) of this title and," for "within 45 days after receiving the application, notify the registrant whether or not the application is complete and,".
Subsec. (c)(3)(B)(ii)(II). Pub. L. 110–94, §2(2), substituted "not later than the applicable decision review time established pursuant to section 136w–8(f)(4)(B) of this title, or, if no review time is established, not later than" for "within".
Subsec. (g)(1)(A). Pub. L. 110–94, §3(1), designated first sentence as cl. (i) and inserted heading, designated second sentence as cl. (ii), inserted heading, and substituted "In accordance with this subparagraph, the Administrator" for "The Administrator", added cls. (iii) and (iv), designated fourth sentence as cl. (v) and inserted heading, and struck out third sentence which read as follows: "The goal of these regulations shall be a review of a pesticide's registration every 15 years."
Subsec. (g)(1)(B), (C). Pub. L. 110–94, §3(2), (3), added subpar. (B) and redesignated former subpar. (B) as (C).
2004—Subsec. (h)(2)(F). Pub. L. 108–199, §501(b)(1), substituted "120 days" for "90 to 180 days".
Subsec. (h)(3)(D)(vi). Pub. L. 108–199, §501(b)(2)(A), substituted "120 days" for "240 days".
Subsec. (h)(3)(F)(iv). Pub. L. 108–199, §501(b)(2)(B), added cl. (iv).
1996—Subsec. (c)(1)(F)(ii) to (vi). Pub. L. 104–170, §210(b), added cls. (ii), (v), and (vi), redesignated former cls. (ii) and (iii) as (iii) and (iv), respectively, and in cl. (iv) substituted "(i), (ii), and (iii)" for "(i) and (ii)".
Subsec. (c)(1)(G). Pub. L. 104–170, §250(1), added subpar. (G).
Subsec. (c)(2)(A). Pub. L. 104–170, §§210(d)(1), 231, inserted heading, inserted "the public health and agricultural need for such minor use," after "pattern of use,", and substituted "potential beneficial or adverse effects on man and the environment" for "potential exposure of man and the environment to the pesticide".
Subsec. (c)(2)(B). Pub. L. 104–170, §210(d)(2), inserted heading.
Subsec. (c)(2)(B)(vi). Pub. L. 104–170, §210(c)(1), added cl. (vi).
Subsec. (c)(2)(B)(vii). Pub. L. 104–170, §210(f)(2), added cl. (vii).
Subsec. (c)(2)(B)(viii). Pub. L. 104–170, §222, added cl. (viii).
Subsec. (c)(2)(C). Pub. L. 104–170, §210(d)(3), inserted heading.
Subsec. (c)(2)(E). Pub. L. 104–170, §210(d)(4), added subpar. (E).
Subsec. (c)(3)(A), (B). Pub. L. 104–170, §210(e)(1), (2), inserted headings.
Subsec. (c)(3)(C), (D). Pub. L. 104–170, §210(e)(3), added subpars. (C) and (D).
Subsec. (c)(9). Pub. L. 104–170, §223, added par. (9).
Subsec. (c)(10). Pub. L. 104–170, §250(2), added par. (10).
Subsec. (f)(4). Pub. L. 104–170, §105(b), added par. (4).
Subsec. (g). Pub. L. 104–170, §106(b), added subsec. (g).
Subsec. (h). Pub. L. 104–170, §224, added subsec. (h).
1991—Subsec. (c)(1)(D). Pub. L. 102–237, §1006(a)(3)(B), (C), added subpar. (D) and redesignated former subpar. (D) as (F).
Subsec. (c)(1)(E). Pub. L. 102–237, §1006(a)(3)(A), (C), added subpar. (E) and struck out former subpar. (E) which read as follows: "the complete formula of the pesticide; and".
Subsec. (c)(1)(F). Pub. L. 102–237, §1006(a)(3)(A), (B), (D), redesignated former subpar. (D) as (F), in cl. (i) substituted "With" for "with" and a period for semicolon at end, in cl. (ii) substituted "Except" for "except" and a period for semicolon at end, in cl. (iii) substituted "After" for "after" and a period for semicolon at end, and struck out former subpar. (F) which read as follows: "a request that the pesticide be classified for general use, for restricted use, or for both."
Subsec. (c)(2)(A). Pub. L. 102–237, §1006(b)(1), (2), substituted "the Administrator" for "he" before "requires", "shall permit", "shall make", and "deems", and substituted "the Administrator's" for "his".
Subsec. (c)(2)(D). Pub. L. 102–237, §1006(c), clarified amendment made by Pub. L. 100–532, §102(b)(2)(A). See 1988 Amendment note below.
Subsec. (c)(3)(A). 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. (c)(6). Pub. L. 102–237, §1006(b)(1), (2), substituted "the Administrator" for "he" before "shall notify" in two places and "the Administrator's" for "his" in four places.
Subsec. (d)(1). Pub. L. 102–237, §1006(b)(1), substituted "the Administrator" for "he" before "shall classify it for both" in subpar. (A), before "will classify" in subpar. (B), and before "shall classify" in subpar. (C).
Subsec. (d)(2). Pub. L. 102–237, §1006(b)(1), substituted "the Administrator" for "he" before "shall notify".
1990—Subsec. (c)(2)(A). Pub. L. 101–624 inserted after third sentence "The Administrator shall not require a person to submit, in relation to a registration or reregistration of a pesticide for minor agricultural use under this subchapter, any field residue data from a geographic area where the pesticide will not be registered for such use."
1988—Subsec. (a). Pub. L. 100–532, §601(b)(1), substituted "Requirement of registration" for "Requirement" in heading and amended text generally. Prior to amendment, text read as follows: "Except as otherwise provided by this subchapter, no person in any State may distribute, sell, offer for sale, hold for sale, ship, deliver for shipment, or receive and (having so received) deliver or offer to deliver, to any person any pesticide which is not registered with the Administrator."
Subsec. (c)(1)(D). Pub. L. 100–532, §801(b)(1)–(4), in introductory provisions, substituted "paragraph (2)(D)" for "subsection (c)(2)(D) of this section", in cl. (i), substituted "(i) with" for "(i) With" and ", except that" for ": Provided, That", in cl. (ii), substituted "clause (i)" for "subparagraph (D)(i) of this paragraph", and in cl. (iii), substituted "clauses (i) and (ii)" for "subparagraphs (D)(i) and (D)(ii) of this paragraph".
Subsec. (c)(2)(A). Pub. L. 100–532, §801(b)(5)(A), (B), substituted "(2) Data in support of registration.—
"(A) The"
for "(2)(A) Data in support of registration.—The", and directed that subpar. (A) be aligned with left margin of subsec. (d)(1)(A) of this section.
Subsec. (c)(2)(B). Pub. L. 100–532, §§102(b)(1), 801(b)(5)(C)–(F), substituted "(B)(i) If" for "(B) Additional data to support existing registration.—(i) If", directed that cls. (ii) to (v) be aligned with left margin of subpar. (A), in cls. (ii) and (iii), inserted "The Administrator shall issue a notice of intent to suspend the registration of a pesticide in accordance with the procedures prescribed by clause (iv) if a registrant fails to comply with this clause.", in cl. (iv), substituted "title. The only" for "title: Provided, that the only", and in cl. (v), substituted "paragraph (1)(D)" for "subsection (c)(1)(D) of this section".
Subsec. (c)(2)(C). Pub. L. 100–532, §801(b)(5)(G), (H), struck out "Simplified procedures" after "(C)" and directed that text be aligned with left margin of subpar. (A).
Subsec. (c)(2)(D). Pub. L. 100–532, §102(b)(2)(A), and Pub. L. 102–237, §1006(c), substituted "the pesticide that is the subject of the application" for "an end-use product".
Subsec. (c)(2)(D)(i). Pub. L. 100–532, §102(b)(2)(B), struck out "the safety of" after "data pertaining to".
Subsec. (c)(3). Pub. L. 100–532, §103, substituted "(A) The Administrator" for "The Administrator" and added subpar. (B).
Subsec. (c)(7). Pub. L. 100–532, §801(b)(6), in introductory provisions, substituted "paragraph (5)" for "subsection (c)(5) of this section", in subpars. (A) and (B), substituted "paragraph (5). If" for "subsection (c)(5) of this section: Provided, That, if", and in subpar. (C), substituted "prescribe. A" for "prescribe: Provided, that a".
Subsec. (d)(1)(A). Pub. L. 100–532, §801(b)(7), substituted "restricted use. If" for "restricted use, provided that if" and "restricted uses. The Administrator" for "restricted uses: Provided, however, That the Administrator".
Subsec. (f)(2). Pub. L. 100–532, §801(b)(8), substituted "this subchapter. As" for "this subchapter: Provided, That as".
Subsec. (g). Pub. L. 100–532, §801(b)(9), struck out subsec. (g) which read as follows: "The Administrator shall accomplish the reregistration of all pesticides in the most expeditious manner practicable: Provided, That, to the extent appropriate, any pesticide that results in a postharvest residue in or on food or feed crops shall be given priority in the reregistration process."
1978—Subsec. (c)(1)(D). Pub. L. 95–396, §2(a)(1), added subpar. (D), and struck out provisions which required the applicant for registration of a pesticide to file with the Administrator a statement containing "if requested by the Administrator, a full description of the tests made and the results thereof upon which the claims are based, except that data submitted on or after January 1, 1970, in support of an application shall not, without permission of the applicant, be considered by the Administrator in support of any other application for registration unless such other applicant shall have first offered to pay reasonable compensation for producing the test data to be relied upon and such data is not protected from disclosure by section 136h(b) of this title. This provision with regard to compensation for producing the test data to be relied upon shall apply with respect to all applications for registration or reregistration submitted on or after October 21, 1972. If the parties cannot agree on the amount and method of payment, the Administrator shall make such determination and may fix such other terms and conditions as may be reasonable under the circumstances. The Administrator's determination shall be made on the record after notice and opportunity for hearing. If either party does not agree with said determination, he may, within thirty days, take an appeal to the Federal district court for the district in which he resides with respect to either the amount of the payment or the terms of payment, or both. Registration shall not be delayed pending the determination of reasonable compensation between the applicants, by the Administrator or by the court.".
Subsec. (c)(2). Pub. L. 95–396, §§2(a)(2)(A)–(D), 3, 4, designated existing provisions as subpar. (A), inserted in second sentence "under subparagraph (B) of this paragraph" after "kind of information", struck out from introductory text of third sentence "subsection (c)(1)(D) of this section and" after "Except as provided by", and inserted provisions relating to establishment of standards for data requirements for registration of pesticides with respect to minor uses and consideration of economic factors in development of standards and cost of development, and added subpars. (B) to (D).
Subsec. (c)(5). Pub. L. 95–396, §5, provided for waiver of data requirements pertaining to efficacy.
Subsec. (c)(7), (8). Pub. L. 95–396, §6, added pars. (7) and (8).
Subsec. (d)(1)(A). Pub. L. 95–396, §7(1), authorized classification of pesticide uses by regulation on the initial classification and registered pesticides prior to reregistration.
Subsec. (d)(2). Pub. L. 95–396, §7(2), substituted "forty-five days" for "30 days".
Subsec. (d)(3). Pub. L. 95–396, §7(3), added par. (3).
Subsec. (g). Pub. L. 95–396, §8, added subsec. (g).
1975—Subsec. (c)(1)(D). Pub. L. 94–140 inserted exception relating to test data submitted on or after January 1, 1970, in support of application, inserted provision that compensation for producing test data shall apply to all applications submitted on or after October 21, 1972, and provision relating to delay of registration pending determination of reasonable compensation, struck out requirement that payment determined by court not be less than amount determined by Administrator, and substituted "If either party" for "If the owner of the test data".
Statutory Notes and Related Subsidiaries
Effective Date of 2007 Amendment
Pub. L. 110–94, §6, Oct. 9, 2007, 121 Stat. 1007, provided that: "This Act [see Short Title of 2007 Amendment note set out under section 136 of this title] and the amendments made by this Act take effect on October 1, 2007."
Effective Date of 2004 Amendment
Pub. L. 108–199, div. G, title V, §501(h), Jan. 23, 2004, 118 Stat. 434, provided that: "Except as otherwise provided in this section [enacting section 136w–8 of this title, amending this section and sections 136a–1, 136x, and 136y of this title, and enacting provisions set out as notes under sections 136 of this title and section 346a of Title 21, Food and Drugs] and the amendments made by this section, this section and the amendments made by this section take effect on the date that is 60 days after the date of enactment of this Act [Jan. 23, 2004]."
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 1978 Amendment
Pub. L. 95–396, §2(b), Sept. 30, 1978, 92 Stat. 824, provided that: "The amendment to section 3(c)(1)(D) of the Federal Insecticide, Fungicide, and Rodenticide Act [subsec. (c)(1)(D) of this section] made by [subsec. (a)(1) of] this section shall apply with respect to all applications for registration approved after the date of enactment of this Act [Sept. 30, 1978]."
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.
Registration Review Deadline Extension
Pub. L. 117–328, div. HH, title VI, §711, Dec. 29, 2022, 136 Stat. 6083, provided that:
"(a)
"(b)
"(1)
"(A) that is associated with an initial registration review described in subsection (a);
"(B) that is noticed in the Federal Register during the period beginning on the date of enactment of this Act [Dec. 29, 2022] and ending on October 1, 2026; and
"(C) for which the Administrator has not, as of the date on which the decision is noticed in the Federal Register, made effects determinations or completed any necessary consultation under section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 1536(a)(2)).
"(2)
"(A) species listed under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); or
"(B) any designated critical habitat.
"(3)
Biological Pesticide Handling Study
Pub. L. 101–624, title XIV, §1498, Nov. 28, 1990, 104 Stat. 3631, provided that the National Academy of Sciences would conduct a study of the biological control programs and registration procedures utilized by the Food and Drug Administration, the Animal and Plant Health Inspection Service, and the Environmental Protection Agency, and within 1 year after completion of the study, develop and implement a common process for reviewing and approving biological control applications submitted to such agencies and offices based on the study conducted, the recommendation of the National Academy of Sciences, and other public comment.
Education, Study, and Report
Pub. L. 100–478, title I, §1010, Oct. 7, 1988, 102 Stat. 2313, provided that:
"(a)
"(b)
"(c)
§136a–1. Reregistration of registered pesticides
(a) General rule
The Administrator shall reregister, in accordance with this section, each registered pesticide containing any active ingredient contained in any pesticide first registered before November 1, 1984, except for any pesticide as to which the Administrator has determined, after November 1, 1984, and before the effective date of this section, that—
(1) there are no outstanding data requirements; and
(2) the requirements of section 136a(c)(5) of this title have been satisfied.
(b) Reregistration phases
Reregistrations of pesticides under this section shall be carried out in the following phases:
(1) The first phase shall include the listing under subsection (c) of the active ingredients of the pesticides that will be reregistered.
(2) The second phase shall include the submission to the Administrator under subsection (d) of notices by registrants respecting their intention to seek reregistration, identification by registrants of missing and inadequate data for such pesticides, and commitments by registrants to replace such missing or inadequate data within the applicable time period.
(3) The third phase shall include submission to the Administrator by registrants of the information required under subsection (e).
(4) The fourth phase shall include an independent, initial review by the Administrator under subsection (f) of submissions under phases two and three, identification of outstanding data requirements, and the issuance, as necessary, of requests for additional data.
(5) The fifth phase shall include the review by the Administrator under subsection (g) of data submitted for reregistration and appropriate regulatory action by the Administrator.
(c) Phase one
(1) Priority for reregistration
For purposes of the reregistration of the pesticides described in subsection (a), the Administrator shall list the active ingredients of pesticides and shall give priority to, among others, active ingredients (other than active ingredients for which registration standards have been issued before the effective date of this section) that—
(A) are in use on or in food or feed and may result in postharvest residues;
(B) may result in residues of potential toxicological concern in potable ground water, edible fish, or shellfish;
(C) have been determined by the Administrator before the effective date of this section to have significant outstanding data requirements; or
(D) are used on crops, including in greenhouses and nurseries, where worker exposure is most likely to occur.
(2) Reregistration lists
For purposes of reregistration under this section, the Administrator shall by order—
(A) not later than 70 days after the effective date of this section, list pesticide active ingredients for which registration standards have been issued before such effective date;
(B) not later than 4 months after such effective date, list the first 150 pesticide active ingredients, as determined under paragraph (1);
(C) not later than 7 months after such effective date, list the second 150 pesticide active ingredients, as determined under paragraph (1); and
(D) not later than 10 months after such effective date, list the remainder of the pesticide active ingredients, as determined under paragraph (1).
Each list shall be published in the Federal Register.
(3) Judicial review
The content of a list issued by the Administrator under paragraph (2) shall not be subject to judicial review.
(4) Notice to registrants
On the publication of a list of pesticide active ingredients under paragraph (2), the Administrator shall send by certified mail to the registrants of the pesticides containing such active ingredients a notice of the time by which the registrants are to notify the Administrator under subsection (d) whether the registrants intend to seek or not to seek reregistration of such pesticides.
(d) Phase two
(1) In general
The registrant of a pesticide that contains an active ingredient listed under subparagraph (B), (C), or (D) of subsection (c)(2) shall submit to the Administrator, within the time period prescribed by paragraph (4), the notice described in paragraph (2) and any information, commitment, or offer described in paragraph (3).
(2) Notice of intent to seek or not to seek reregistration
(A) The registrant of a pesticide containing an active ingredient listed under subparagraph (B), (C), or (D) of subsection (c)(2) shall notify the Administrator by certified mail whether the registrant intends to seek or does not intend to seek reregistration of the pesticide.
(B) If a registrant submits a notice under subparagraph (A) of an intention not to seek reregistration of a pesticide, the Administrator shall publish a notice in the Federal Register stating that such a notice has been submitted.
(3) Missing or inadequate data
Each registrant of a pesticide that contains an active ingredient listed under subparagraph (B), (C), or (D) of subsection (c)(2) and for which the registrant submitted a notice under paragraph (2) of an intention to seek reregistration of such pesticide shall submit to the Administrator—
(A) in accordance with regulations issued by the Administrator under section 136a of this title, an identification of—
(i) all data that are required by regulation to support the registration of the pesticide with respect to such active ingredient;
(ii) data that were submitted by the registrant previously in support of the registration of the pesticide that are inadequate to meet such regulations; and
(iii) data identified under clause (i) that have not been submitted to the Administrator; and
(B) either—
(i) a commitment to replace the data identified under subparagraph (A)(ii) and submit the data identified under subparagraph (A)(iii) within the applicable time period prescribed by paragraph (4)(B); or
(ii) an offer to share in the cost to be incurred by a person who has made a commitment under clause (i) to replace or submit the data and an offer to submit to arbitration as described by section 136a(c)(2)(B) of this title with regard to such cost sharing.
For purposes of a submission by a registrant under subparagraph (A)(ii), data are inadequate if the data are derived from a study with respect to which the registrant is unable to make the certification prescribed by subsection (e)(1)(G) that the registrant possesses or has access to the raw data used in or generated by such study. For purposes of a submission by a registrant under such subparagraph, data shall be considered to be inadequate if the data are derived from a study submitted before January 1, 1970, unless it is demonstrated to the satisfaction of the Administrator that such data should be considered to support the registration of the pesticide that is to be reregistered.
(4) Time periods
(A) A submission under paragraph (2) or (3) shall be made—
(i) in the case of a pesticide containing an active ingredient listed under subsection (c)(2)(B), not later than 3 months after the date of publication of the listing of such active ingredient;
(ii) in the case of a pesticide containing an active ingredient listed under subsection (c)(2)(C), not later than 3 months after the date of publication of the listing of such active ingredient; and
(iii) in the case of a pesticide containing an active ingredient listed under subsection (c)(2)(D), not later than 3 months after the date of publication of the listing of such active ingredient.
On application, the Administrator may extend a time period prescribed by this subparagraph if the Administrator determines that factors beyond the control of the registrant prevent the registrant from complying with such period.
(B) A registrant shall submit data in accordance with a commitment entered into under paragraph (3)(B) within a reasonable period of time, as determined by the Administrator, but not more than 48 months after the date the registrant submitted the commitment. The Administrator, on application of a registrant, may extend the period prescribed by the preceding sentence by no more than 2 years if extraordinary circumstances beyond the control of the registrant prevent the registrant from submitting data within such prescribed period. Upon application of a registrant, the Administrator shall, in the case of a minor use, extend the deadline for the production of residue chemistry data under this subparagraph for data required solely to support that minor use until the final deadline for submission of data under this section for the other uses of the pesticide established as of August 3, 1996, if—
(i) the data to support other uses of the pesticide on a food are being provided;
(ii) the registrant, in submitting a request for such an extension provides a schedule, including interim dates to measure progress, to assure that the data production will be completed before the expiration of the extension period;
(iii) the Administrator has determined that such extension will not significantly delay the Administrator's schedule for issuing a reregistration eligibility determination required under this section; and
(iv) the Administrator has determined that based on existing data, such extension would not significantly increase the risk of any unreasonable adverse effect on the environment. If the Administrator grants an extension under this subparagraph, the Administrator shall monitor the development of the data and shall ensure that the registrant is meeting the schedule for the production of the data. If the Administrator determines that the registrant is not meeting or has not met the schedule for the production of such data, the Administrator may proceed in accordance with clause (iv) of section 136a(c)(2)(B) of this title or other provisions of this section, as appropriate, regarding the continued registration of the affected products with the minor use and shall inform the public of such action. Notwithstanding the provisions of this subparagraph, the Administrator may take action to modify or revoke the extension under this subparagraph if the Administrator determines that the extension for the minor use may cause an unreasonable adverse effect on the environment. In such circumstance, the Administrator shall provide written notice to the registrant revoking the extension of time for submission of data. Such data shall instead be due in accordance with the date then established by the Administrator for submission of the data.
(5) Cancellation and removal
(A) If the registrant of a pesticide does not submit a notice under paragraph (2) or (3) within the time prescribed by paragraph (4)(A), the Administrator shall issue a notice of intent to cancel the registration of such registrant for such pesticide and shall publish the notice in the Federal Register and allow 60 days for the submission of comments on the notice. On expiration of such 60 days, the Administrator, by order and without a hearing, may cancel the registration or take such other action, including extension of applicable time periods, as may be necessary to enable reregistration of such pesticide by another person.
(B)(i) If—
(I) no registrant of a pesticide containing an active ingredient listed under subsection (c)(2) notifies the Administrator under paragraph (2) that the registrant intends to seek reregistration of any pesticide containing that active ingredient;
(II) no such registrant complies with paragraph (3)(A); or
(III) no such registrant makes a commitment under paragraph (3)(B) to replace or submit all data described in clauses (ii) and (iii) of paragraph (3)(A);
the Administrator shall publish in the Federal Register a notice of intent to remove the active ingredient from the list established under subsection (c)(2) and a notice of intent to cancel the registrations of all pesticides containing such active ingredient and shall provide 60 days for comment on such notice.
(ii) After the 60-day period has expired, the Administrator, by order, may cancel any such registration without hearing, except that the Administrator shall not cancel a registration under this subparagraph if—
(I) during the comment period a person acquires the rights of the registrant in that registration;
(II) during the comment period that person furnishes a notice of intent to reregister the pesticide in accordance with paragraph (2); and
(III) not later than 120 days after the publication of the notice under this subparagraph, that person has complied with paragraph (3) and the fee prescribed by this section has been paid.
(6) Suspensions and penalties
The Administrator shall issue a notice of intent to suspend the registration of a pesticide in accordance with the procedures prescribed by section 136a(c)(2)(B)(iv) of this title if the Administrator determines that (A) progress is insufficient to ensure the submission of the data required for such pesticide under a commitment made under paragraph (3)(B) within the time period prescribed by paragraph (4)(B) or (B) the registrant has not submitted such data to the Administrator within such time period. If the registrant does not commit to support a specific minor use of the pesticide, but is supporting and providing data in a timely and adequate fashion to support uses of the pesticide on a food, or if all uses of the pesticide are nonfood uses and the registrant does not commit to support a specific minor use of the pesticide but is supporting and providing data in a timely and adequate fashion to support other nonfood uses of the pesticide, the Administrator, at the written request of the registrant, shall not take any action pursuant to this paragraph in regard to such unsupported minor use until the final deadline established as of August 3, 1996, for the submission of data under this section for the supported uses identified pursuant to this paragraph unless the Administrator determines that the absence of the data is significant enough to cause human health or environmental concerns. On such a determination the Administrator may refuse the request for extension by the registrant. Upon receipt of the request from the registrant, the Administrator shall publish in the Federal Register a notice of the receipt of the request and the effective date upon which the uses not being supported will be voluntarily deleted from the registration pursuant to section 136d(f)(1) of this title. If the Administrator grants an extension under this paragraph, the Administrator shall monitor the development of the data for the uses being supported and shall ensure that the registrant is meeting the schedule for the production of such data. If the Administrator determines that the registrant is not meeting or has not met the schedule for the production of such data, the Administrator may proceed in accordance with section 136a(c)(2)(B)(iv) of this title regarding the continued registration of the affected products with the minor and other uses and shall inform the public of such action in accordance with section 136d(f)(2) of this title. Notwithstanding this subparagraph, the Administrator may deny, modify, or revoke the temporary extension under this paragraph if the Administrator determines that the continuation of the minor use may cause an unreasonable adverse effect on the environment. In the event of modification or revocation, the Administrator shall provide, in writing, to the registrant a notice revoking the temporary extension and establish a new effective date by which the minor use shall be deleted from the registration.
(e) Phase three
(1) Information about studies
Each registrant of a pesticide that contains an active ingredient listed under subparagraph (B), (C), or (D) of subsection (c)(2) who has submitted a notice under subsection (d)(2) of an intent to seek the reregistration of such pesticide shall submit, in accordance with the guidelines issued under paragraph (4), to the Administrator—
(A) a summary of each study concerning the active ingredient previously submitted by the registrant in support of the registration of a pesticide containing such active ingredient and considered by the registrant to be adequate to meet the requirements of section 136a of this title and the regulations issued under such section;
(B) a summary of each study concerning the active ingredient previously submitted by the registrant in support of the registration of a pesticide containing such active ingredient that may not comply with the requirements of section 136a of this title and the regulations issued under such section but which the registrant asserts should be deemed to comply with such requirements and regulations;
(C) a reformat of the data from each study summarized under subparagraph (A) or (B) by the registrant concerning chronic dosing, oncogenicity, reproductive effects, mutagenicity, neurotoxicity, teratogenicity, or residue chemistry of the active ingredient that were submitted to the Administrator before January 1, 1982;
(D) where data described in subparagraph (C) are not required for the active ingredient by regulations issued under section 136a of this title, a reformat of acute and subchronic dosing data submitted by the registrant to the Administrator before January 1, 1982, that the registrant considers to be adequate to meet the requirements of section 136a of this title and the regulations issued under such section;
(E) an identification of data that are required to be submitted to the Administrator under section 136d(a)(2) of this title, indicating an adverse effect of the pesticide;
(F) an identification of any other information available that in the view of the registrant supports the registration;
(G) a certification that the registrant or the Administrator possesses or has access to the raw data used in or generated by the studies that the registrant summarized under subparagraph (A) or (B);
(H) either—
(i) a commitment to submit data to fill each outstanding data requirement identified by the registrant; or
(ii) an offer to share in the cost of developing such data to be incurred by a person who has made a commitment under clause (i) to submit such data, and an offer to submit to arbitration as described by section 136a(c)(2)(B) of this title with regard to such cost sharing; and
(I) evidence of compliance with section 136a(c)(1)(D)(ii) 1 of this title and regulations issued thereunder with regard to previously submitted data as if the registrant were now seeking the original registration of the pesticide.
A registrant who submits a certification under subparagraph (G) that is false shall be considered to have violated this subchapter and shall be subject to the penalties prescribed by section 136l of this title.
(2) Time periods
(A) The information required by paragraph (1) shall be submitted to the Administrator—
(i) in the case of a pesticide containing an active ingredient listed under subsection (c)(2)(B), not later than 12 months after the date of publication of the listing of such active ingredient;
(ii) in the case of a pesticide containing an active ingredient listed under subsection (c)(2)(C), not later than 12 months after the date of publication of the listing of such active ingredient; and
(iii) in the case of a pesticide containing an active ingredient listed under subsection (c)(2)(D), not later than 12 months after the date of publication of the listing of such active ingredient.
(B) A registrant shall submit data in accordance with a commitment entered into under paragraph (1)(H) within a reasonable period of time, as determined by the Administrator, but not more than 48 months after the date the registrant submitted the commitment under such paragraph. The Administrator, on application of a registrant, may extend the period prescribed by the preceding sentence by no more than 2 years if extraordinary circumstances beyond the control of the registrant prevent the registrant from submitting data within such prescribed period. Upon application of a registrant, the Administrator shall, in the case of a minor use, extend the deadline for the production of residue chemistry data under this subparagraph for data required solely to support that minor use until the final deadline for submission of data under this section for the other uses of the pesticide established as of August 3, 1996, if—
(i) the data to support other uses of the pesticide on a food are being provided;
(ii) the registrant, in submitting a request for such an extension provides a schedule, including interim dates to measure progress, to assure that the data production will be completed before the expiration of the extension period;
(iii) the Administrator has determined that such extension will not significantly delay the Administrator's schedule for issuing a reregistration eligibility determination required under this section; and
(iv) the Administrator has determined that based on existing data, such extension would not significantly increase the risk of any unreasonable adverse effect on the environment. If the Administrator grants an extension under this subparagraph, the Administrator shall monitor the development of the data and shall ensure that the registrant is meeting the schedule for the production of the data. If the Administrator determines that the registrant is not meeting or has not met the schedule for the production of such data, the Administrator may proceed in accordance with clause (iv) of section 136a(c)(2)(B) of this title or other provisions of this section, as appropriate, regarding the continued registration of the affected products with the minor use and shall inform the public of such action. Notwithstanding the provisions of this subparagraph, the Administrator may take action to modify or revoke the extension under this subparagraph if the Administrator determines that the extension for the minor use may cause an unreasonable adverse effect on the environment. In such circumstance, the Administrator shall provide written notice to the registrant revoking the extension of time for submission of data. Such data shall instead be due in accordance with the date then established by the Administrator for submission of the data.
(3) Cancellation
(A) If the registrant of a pesticide fails to submit the information required by paragraph (1) within the time prescribed by paragraph (2), the Administrator, by order and without hearing, shall cancel the registration of such pesticide. If the registrant does not commit to support a specific minor use of the pesticide, but is supporting and providing data in a timely and adequate fashion to support uses of the pesticide on a food, or if all uses of the pesticide are nonfood uses and the registrant does not commit to support a specific minor use of the pesticide but is supporting and providing data in a timely and adequate fashion to support other nonfood uses of the pesticide, the Administrator, at the written request of the registrant, shall not take any action pursuant to this subparagraph in regard to such unsupported minor use until the final deadline established as of August 3, 1996, for the submission of data under this section for the supported uses identified pursuant to this subparagraph unless the Administrator determines that the absence of the data is significant enough to cause human health or environmental concerns. On the basis of such determination, the Administrator may refuse the request for extension by the registrant. Upon receipt of the request from the registrant, the Administrator shall publish in the Federal Register a notice of the receipt of the request and the effective date upon which the uses not being supported will be voluntarily deleted from the registration pursuant to section 136d(f)(1) of this title. If the Administrator grants an extension under this subparagraph, the Administrator shall monitor the development of the data for the uses being supported and shall ensure that the registrant is meeting the schedule for the production of such data. If the Administrator determines that the registrant is not meeting or has not met the schedule for the production of such data, the Administrator may proceed in accordance with section 136a(c)(2)(B)(iv) of this title regarding the continued registration of the affected products with the minor and other uses and shall inform the public of such action in accordance with section 136d(f)(2) of this title. Notwithstanding this subparagraph, the Administrator may deny, modify, or revoke the temporary extension under this subparagraph if the Administrator determines that the continuation of the minor use may cause an unreasonable adverse effect on the environment. In the event of modification or revocation, the Administrator shall provide, in writing, to the registrant a notice revoking the temporary extension and establish a new effective date by which the minor use shall be deleted from the registration.
(B)(i) If the registrant of a pesticide submits the information required by paragraph (1) within the time prescribed by paragraph (2) and such information does not conform to the guidelines for submissions established by the Administrator, the Administrator shall determine whether the registrant made a good faith attempt to conform its submission to such guidelines.
(ii) If the Administrator determines that the registrant made a good faith attempt to conform its submission to such guidelines, the Administrator shall provide the registrant a reasonable period of time to make any necessary changes or corrections.
(iii)(I) If the Administrator determines that the registrant did not make a good faith attempt to conform its submission to such guidelines, the Administrator may issue a notice of intent to cancel the registration. Such a notice shall be sent to the registrant by certified mail.
(II) The registration shall be canceled without a hearing or further notice at the end of 30 days after receipt by the registrant of the notice unless during that time a request for a hearing is made by the registrant.
(III) If a hearing is requested, a hearing shall be conducted under section 136d(d) of this title, except that the only matter for resolution at the hearing shall be whether the registrant made a good faith attempt to conform its submission to such guidelines. The hearing shall be held and a determination made within 75 days after receipt of a request for hearing.
(4) Guidelines
(A) Not later than 1 year after the effective date of this section, the Administrator, by order, shall issue guidelines to be followed by registrants in—
(i) summarizing studies;
(ii) reformatting studies;
(iii) identifying adverse information; and
(iv) identifying studies that have been submitted previously that may not meet the requirements of section 136a of this title or regulations issued under such section,
under paragraph (1).
(B) Guidelines issued under subparagraph (A) shall not be subject to judicial review.
(5) Monitoring
The Administrator shall monitor the progress of registrants in acquiring and submitting the data required under paragraph (1).
(f) Phase four
(1) Independent review and identification of outstanding data requirements
(A) The Administrator shall review the submissions of all registrants of pesticides containing a particular active ingredient under subsections (d)(3) and (e)(1) to determine if such submissions identified all the data that are missing or inadequate for such active ingredient. To assist the review of the Administrator under this subparagraph, the Administrator may require a registrant seeking reregistration to submit complete copies of studies summarized under subsection (e)(1).
(B) The Administrator shall independently identify and publish in the Federal Register the outstanding data requirements for each active ingredient that is listed under subparagraph (B), (C), or (D) of subsection (c)(2) and that is contained in a pesticide to be reregistered under this section. The Administrator, at the same time, shall issue a notice under section 136a(c)(2)(B) of this title for the submission of the additional data that are required to meet such requirements.
(2) Time periods
(A) The Administrator shall take the action required by paragraph (1)—
(i) in the case of a pesticide containing an active ingredient listed under subsection (c)(2)(B), not later than 18 months after the date of the listing of such active ingredient;
(ii) in the case of a pesticide containing an active ingredient listed under subsection (c)(2)(C), not later than 24 months after the date of the listing of such active ingredient; and
(iii) in the case of a pesticide containing an active ingredient listed under subsection (c)(2)(D), not later than 33 months after the date of the listing of such active ingredient.
(B) If the Administrator issues a notice to a registrant under paragraph (1)(B) for the submission of additional data, the registrant shall submit such data within a reasonable period of time, as determined by the Administrator, but not to exceed 48 months after the issuance of such notice. The Administrator, on application of a registrant, may extend the period prescribed by the preceding sentence by no more than 2 years if extraordinary circumstances beyond the control of the registrant prevent the registrant from submitting data within such prescribed period. Upon application of a registrant, the Administrator shall, in the case of a minor use, extend the deadline for the production of residue chemistry data under this subparagraph for data required solely to support that minor use until the final deadline for submission of data under this section for the other uses of the pesticide established as of August 3, 1996, if—
(i) the data to support other uses of the pesticide on a food are being provided;
(ii) the registrant, in submitting a request for such an extension provides a schedule, including interim dates to measure progress, to assure that the data production will be completed before the expiration of the extension period;
(iii) the Administrator has determined that such extension will not significantly delay the Administrator's schedule for issuing a reregistration eligibility determination required under this section; and
(iv) the Administrator has determined that based on existing data, such extension would not significantly increase the risk of any unreasonable adverse effect on the environment. If the Administrator grants an extension under this subparagraph, the Administrator shall monitor the development of the data and shall ensure that the registrant is meeting the schedule for the production of the data. If the Administrator determines that the registrant is not meeting or has not met the schedule for the production of such data, the Administrator may proceed in accordance with clause (iv) of section 136a(c)(2)(B) of this title or other provisions of this section, as appropriate, regarding the continued registration of the affected products with the minor use and shall inform the public of such action. Notwithstanding the provisions of this subparagraph, the Administrator may take action to modify or revoke the extension under this subparagraph if the Administrator determines that the extension for the minor use may cause an unreasonable adverse effect on the environment. In such circumstance, the Administrator shall provide written notice to the registrant revoking the extension of time for submission of data. Such data shall instead be due in accordance with the date then established by the Administrator for submission of the data.
(3) Suspensions and penalties
The Administrator shall issue a notice of intent to suspend the registration of a pesticide in accordance with the procedures prescribed by section 136a(c)(2)(B)(iv) of this title if the Administrator determines that (A) tests necessary to fill an outstanding data requirement for such pesticide have not been initiated within 1 year after the issuance of a notice under paragraph (1)(B), or (B) progress is insufficient to ensure submission of the data referred to in clause (A) within the time period prescribed by paragraph (2)(B) or the required data have not been submitted to the Administrator within such time period. If the registrant does not commit to support a specific minor use of the pesticide, but is supporting and providing data in a timely and adequate fashion to support uses of the pesticide on a food, or if all uses of the pesticide are nonfood uses and the registrant does not commit to support a specific minor use of the pesticide but is supporting and providing data in a timely and adequate fashion to support other nonfood uses of the pesticide, the Administrator, at the written request of the registrant, shall not take any action pursuant to this paragraph in regard to such unsupported minor use until the final deadline established as of August 3, 1996, for the submission of data under this section for the supported uses identified pursuant to this paragraph unless the Administrator determines that the absence of the data is significant enough to cause human health or environmental concerns. On such a determination the Administrator may refuse the request for extension by the registrant. Upon receipt of the request from the registrant, the Administrator shall publish in the Federal Register a notice of the receipt of the request and the effective date upon which the uses not being supported will be voluntarily deleted from the registration pursuant to section 136d(f)(1) of this title. If the Administrator grants an extension under this paragraph, the Administrator shall monitor the development of the data for the uses being supported and shall ensure that the registrant is meeting the schedule for the production of such data. If the Administrator determines that the registrant is not meeting or has not met the schedule for the production of such data, the Administrator may proceed in accordance with section 136a(c)(2)(B)(iv) of this title regarding the continued registration of the affected products with the minor and other uses and shall inform the public of such action in accordance with section 136d(f)(2) of this title. Notwithstanding this subparagraph, the Administrator may deny, modify, or revoke the temporary extension under this paragraph if the Administrator determines that the continuation of the minor use may cause an unreasonable adverse effect on the environment. In the event of modification or revocation, the Administrator shall provide, in writing, to the registrant a notice revoking the temporary extension and establish a new effective date by which the minor use shall be deleted from the registration.
(g) Phase five
(1) Data review
The Administrator shall conduct a thorough examination of all data submitted under this section concerning an active ingredient listed under subsection (c)(2) and of all other available data found by the Administrator to be relevant.
(2) Reregistration and other actions
(A)
(i) for all active ingredients subject to reregistration under this section for which tolerances or exemptions from tolerances are required under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.), not later than the last date for tolerance reassessment established under section 408(q)(1)(C) of that Act (21 U.S.C. 346a(q)(1)(C)); and
(ii) for all other active ingredients subject to reregistration under this section, not later than October 3, 2008.
(B)
(i)
(ii)
(I)
(II)
(C) After conducting the review required by paragraph (1) for each active ingredient of a pesticide and the review required by subparagraph (B) of this paragraph, the Administrator shall determine whether to reregister a pesticide by determining whether such pesticide meets the requirements of section 136a(c)(5) of this title. If the Administrator determines that a pesticide is eligible to be reregistered, the Administrator shall reregister such pesticide within 6 months after the submission of the data concerning such pesticide under subparagraph (B).
(D)
(i)
(ii)
(E) As soon as the Administrator has sufficient information with respect to the dietary risk of a particular active ingredient, but in any event no later than the time the Administrator makes a determination under subparagraph (C) or (D) with respect to pesticides containing a particular active ingredient, the Administrator shall—
(i) reassess each associated tolerance and exemption from the requirement for a tolerance issued under section 408 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 346a);
(ii) determine whether such tolerance or exemption meets the requirements of that Act [21 U.S.C. 301 et seq.];
(iii) determine whether additional tolerances or exemptions should be issued;
(iv) publish in the Federal Register a notice setting forth the determinations made under this subparagraph; and
(v) commence promptly such proceedings under this subchapter and section 408 of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 346a] as are warranted by such determinations.
(h) Compensation of data submitter
If data that are submitted by a registrant under subsection (d), (e), (f), or (g) are used to support the application of another person under section 136a of this title, the registrant who submitted such data shall be entitled to compensation for the use of such data as prescribed by section 136a(c)(1)(D) 1 of this title. In determining the amount of such compensation, the fees paid by the registrant under this section shall be taken into account.
(i) Fees
(1) Maintenance fee
(A)
(B) In the case of a pesticide that is registered for a minor agricultural use, the Administrator may reduce or waive the payment of the fee imposed under this paragraph if the Administrator determines that the fee would significantly reduce the availability of the pesticide for the use.
(C)
(D)
(i) a registrant holding not more than 50 pesticide registrations shall be $129,400 for each of fiscal years 2019 through 2022, and $172,000 for each of fiscal years 2023 through 2027; and
(ii) a registrant holding over 50 registrations shall be $207,000 for each of fiscal years 2019 through 2022, and $277,200 for each of fiscal years 2023 through 2027.
(E)
(i)
(I) a registrant holding not more than 50 pesticide registrations shall be $79,100 for each of fiscal years 2019 through 2022, and $105,000 for each of fiscal years 2023 through 2027; and
(II) a registrant holding over 50 pesticide registrations shall be $136,800 for each of fiscal years 2019 through 2022, and $184,800 for each of fiscal years 2023 through 2027.
(ii)
(I)
(aa) has 500 or fewer employees; and
(bb) during the 3-year period prior to the most recent maintenance fee billing cycle, had an average annual global gross revenue from pesticides that did not exceed $60,000,000.
(II)
(aa)
(bb)
(cc)
(F)
(i)
(I) has 500 or fewer employees;
(II) during the 3-year period prior to the most recent maintenance fee billing cycle, had an average annual global gross revenue from all sources that did not exceed $10,000,000; and
(III) holds not more than 5 pesticide registrations under this paragraph.
(ii)
(iii)
(G)
(i)
(I) training of farm workers;
(II) education of farm workers with respect to—
(aa) rights of farm workers relating to pesticide safety; and
(bb) the worker protection standard under part 170 of title 40, Code of Federal Regulations (or successor regulations);
(III) the development of new informational materials;
(IV) the development of training modules; and
(V) the development of innovative methods of delivery of such informational materials and training modules.
(ii)
(I) providing training and education services for farm workers or handlers of pesticides; or
(II) developing informational materials for farm workers or handlers of pesticides.
(iii)
(I)
(II)
(iv)
(v)
(I) a member of the partnership that will enter into the assistance agreement with the Environmental Protection Agency for the purposes of accountability for the proper expenditure of Federal funds;
(II) performance of the assistance agreement;
(III) liability for claims for recovery of unallowable costs incurred under the agreement; and
(IV) specifying roles in performing the proposed scope of work for the assistance agreement.
(H)
(i)
(I) technical assistance and training of health care providers relating to the recognition, treatment, and management of pesticide-related injuries and illnesses;
(II) the development of informational materials for technical assistance and training described in subclause (I); and
(III) the development of outreach and delivery methods relating to the recognition, treatment, and management of pesticide-related illnesses.
(ii)
(iii)
(I) a member of the partnership that will enter into the assistance agreement with the Environmental Protection Agency for the purposes of accountability for the proper expenditure of Federal funds;
(II) performance of the assistance agreement;
(III) liability for claims for recovery of unallowable costs incurred under the agreement; and
(IV) roles in performing the proposed scope of work for the assistance agreement.
(I)
(J)
(K)
(i)
(ii)
(I) the organization applying for the grant has experience providing technical assistance to farm worker or clinician-training organizations; and
(II) the proposed project would make specific technical assistance available to organizations seeking information and assistance concerning—
(aa) the grant application process;
(bb) the drafting of grant applications; and
(cc) compliance with grant management and reporting requirements.
(iii)
(iv)
(L) The Administrator shall exempt any public health pesticide from the payment of the fee prescribed under this paragraph if, in consultation with the Secretary of Health and Human Services, the Administrator determines, based on information supplied by the registrant, that the economic return to the registrant from sales of the pesticide does not support the registration or reregistration of the pesticide.
(M) If any fee prescribed by this paragraph with respect to the registration of a pesticide is not paid by a registrant by the time prescribed, the Administrator, by order and without hearing, may cancel the registration.
(N) The authority provided under this paragraph shall terminate on September 30, 2027.
(2) Other fees
Except as provided in section 136w–8 of this title, during the period beginning on December 29, 2022, and ending on September 30, 2029, the Administrator may not levy any other fees for the registration of a pesticide under this subchapter or any other action covered under a table specified in section 136w–8(b)(3)(B) of this title, except as provided in paragraph (1).
(j) Exemption of certain registrants
The requirements of subsections (d), (e), (f), and (i) (other than subsection (i)(1)) regarding data concerning an active ingredient and fees for review of such data shall not apply to any person who is the registrant of a pesticide to the extent that, under section 136a(c)(2)(D) of this title, the person would not be required to submit or cite such data to obtain an initial registration of such pesticide.
(k) Reregistration and expedited processing fund
(1) Establishment
There shall be established in the Treasury of the United States a reregistration and expedited processing fund which shall be known as the Reregistration and Expedited Processing Fund.
(2) Source and use
(A) All moneys derived from fees collected by the Administrator under subsection (i) shall be deposited in the Reregistration and Expedited Processing Fund and shall be available to the Administrator, without fiscal year limitation, including, to the maximum extent practicable, during periods in which Environmental Protection Agency employees are on shutdown or emergency furlough as a result of a lapse in appropriations, specifically to offset the costs of reregistration and expedited processing of the applications specified in paragraph (3), to offset the costs of registration review under section 136a(g) of this title, including the costs associated with any review under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) required as part of the registration review, to offset the costs associated with tracking and implementing registration review decisions, including registration review decisions designed to reduce risk, for the purposes specified in paragraphs (4) and (5), and to enhance the information systems capabilities to improve the tracking of pesticide registration decisions. The Administrator shall, prior to expending any such moneys derived from fees—
(i) effective October 1, 1997, adopt specific and cost accounting rules and procedures as approved by the Government Accountability Office and the Inspector General of the Environmental Protection Agency to ensure that moneys derived from fees are allocated solely for the purposes specified in the first sentence of this subparagraph;
(ii) prohibit the use of such moneys derived from fees to pay for any costs other than those necessary to achieve the purposes specified in the first sentence of this subparagraph; and
(iii) ensure that personnel and facility costs associated with the functions to be carried out under this paragraph do not exceed agency averages for comparable personnel and facility costs.
(B) The Administrator shall also—
(i) complete the review of unreviewed reregistration studies required to support the reregistration eligibility decisions scheduled for completion in accordance with subsection (l)(2); and
(ii) contract for such outside assistance as may be necessary for review of required studies, using a generally accepted competitive process for the selection of vendors of such assistance.
(3) Review of registrant submissions not covered by section 136w–8(b)(3)(B) of this title
(A) Definition of submission not covered by section 136w–8(b)(3)(B) of this title
In this paragraph, the term "submission not covered by section 136w–8(b)(3)(B) of this title" means any submission filed by a registrant with the Administrator relating to a registration that is not covered by a fee table under section 136w–8(b)(3)(B) of this title.
(B) Set-aside
(i) In general
In addition to amounts otherwise available for each of fiscal years 2023 through 2027, the Administrator shall use approximately 1/8 of the amounts made available to the Administrator in the Reregistration and Expedited Processing Fund for the activities described in clause (ii).
(ii) Activities
In addition to amounts otherwise available, the Administrator shall use amounts made available under clause (i) to obtain sufficient personnel and resources to process submissions not covered by section 136w–8(b)(3)(B) of this title to meet the applicable deadlines described in—
(I) the notice of the Administrator entitled "Pesticide Registration Notice (PR) 98–10: Notifications, Non-Notifications and Minor Formulation Amendments" and dated October 22, 1998 (and any successor amendments to such notice); and
(II) subsections (c)(3)(B) and (h) of section 136a of this title.
(4) Development of public health performance standards for antimicrobial pesticide devices
(A) Set-aside
In addition to amounts otherwise available, for each of fiscal years 2023 through 2027, the Administrator shall use not more than $500,000 of the amounts made available to the Administrator in the Reregistration and Expedited Processing Fund for the activities described in subparagraph (B).
(B) Antimicrobial pesticide devices
The Administrator shall use amounts made available under subparagraph (A) to develop efficacy test methods for antimicrobial pesticide devices making public health claims.
(5) Good laboratory practices inspections
(A) Set-aside
For each of fiscal years 2023 through 2027, the Administrator shall use not more than $500,000 of the amounts made available to the Administrator in the Reregistration and Expedited Processing Fund for the activities described in subparagraph (B).
(B) Activities
The Administrator shall use amounts made available under subparagraph (A) for enhancements to the good laboratory practices standards compliance monitoring program established under part 160 of title 40 of the Code of Federal Regulations (or successor regulations), with respect to laboratory inspections and data audits conducted in support of pesticide product registrations under this subchapter. As part of such monitoring program, the Administrator shall make available to each laboratory inspected under such program in support of such registrations a preliminary summary of inspection observations not later than 60 days after the date on which such an inspection is completed.
(6) Agency training and staff
(A) Set-aside
In addition to amounts otherwise available, for each of fiscal years 2023 through 2027, the Administrator shall use not more than $500,000 of the amounts made available to the Administrator in the Reregistration and Expedited Processing Fund for the activities described in subparagraph (B).
(B) Activities
The Administrator shall use amounts made available under subparagraph (A) to carry out the following activities:
(i) Training for agency employees
The Administrator shall administer training and education programs for employees of the Environmental Protection Agency, relating to the regulatory responsibilities and policies established by this subchapter, including programs—
(I) for improving the scientific, technical, and administrative skills of officers and employees authorized to administer programs under this subchapter;
(II) to align competencies identified by the Administrator for mission accomplishment;
(III) for addressing best practices for operational performance and improvement;
(IV) for improving administrative processes and procedures and addressing efficiency issues;
(V) to promote consistent regulatory decision-making; and
(VI) for educating registrants and regulated stakeholders on regulatory procedures.
(ii) Agreements with institutions of higher education
Not later than 1 year, to the maximum extent practicable, after December 29, 2022, the Administrator shall establish a competitive grant program to develop training curricula and programs in accordance with clause (i) through financial assistance agreements with 1 or more of the following institutions of higher education:
(I) Non-land-grant colleges of agriculture (as defined in section 3103 of this title).
(II) Land-grant colleges and universities (as defined in section 3103 of this title).
(III) 1994 Institutions (as defined in section 532 of the Equity in Educational Land-Grant Status Act of 1994 (7 U.S.C. 301 note; Public Law 103–382)).
(7) Vector expedited review vouchers
(A) Set-aside
In addition to amounts otherwise available, for each of fiscal years 2023 through 2027, the Administrator shall use not more than $500,000 of the amounts made available to the Administrator in the Reregistration and Expedited Processing Fund to establish and carry out the Vector Expedited Review Voucher program in accordance with subparagraph (B).
(B) Vector Expedited Review Voucher program
(i) Definitions
In this subparagraph:
(I) Program
The term "program" means the Vector Expedited Review Voucher program established under clause (ii).
(II) Voucher
The term "voucher" means a voucher—
(aa) issued under the program by the Administrator to a pesticide registration applicant that entitles the holder to an expedited review described under clause (vi) of a single different pesticide registration action; and
(bb) the entitlement to which may be transferred (including by sale) by the holder of the voucher, without limitation on the number of times the voucher may be transferred, before the voucher is redeemed.
(ii) Establishment
Not later than one year after December 29, 2022, the Administrator, acting though the Office of Pesticide Programs, shall establish a program to be known as the Vector Expedited Review Voucher program.
(iii) Purpose
The purpose of the program is to incentivize the development of new insecticides to control and prevent the spread of vector borne disease by expediting reviews by decreasing decision review times provided in section 136w–8(b)(3)(B) of this title.
(iv) Issuance of vouchers
(I) In general
For each of fiscal years 2023 through 2027, the Administrator shall issue a voucher to a pesticide registration applicant for a new active ingredient if the applicant submits and has successfully registered a mosquito-control product that—
(aa) demonstrates a proven efficacy against pyrethroid or other insecticide-resistant mosquitoes;
(bb) prevents, mitigates, destroys, or repels pyrethroid or other insecticide-resistant mosquitoes, with a novel or unique mechanism or mode of action, different from other insecticides already registered by the Administrator for mosquito control;
(cc) targets mosquitoes capable of spreading such diseases as Malaria, Dengue, Zika, Chikungunya, St. Louis encephalitis, Eastern encephalitis, Western encephalitis, West Nile encephalitis, Cache Valley encephalitis, LaCrosse encephalitis, and Yellow Fever;
(dd) the registrant has submitted a global access plan that will be made publicly available for the active ingredient and that includes—
(AA) manufacturing locations, including any licensed third-party manufacturers;
(BB) distribution and procurement processes for malaria vector control programs in selected countries; and
(CC) the prices for common quantities of the product;
(ee) meets the appropriate guidelines as being effective in the primary vector control intervention areas, including insecticide-treated nets and indoor residual spray;
(ff) is made accessible for use in—
(AA) the United States, including territories or possessions of the United States; and
(BB) countries where mosquito-borne diseases, such as malaria, are prevalent;
(gg) meets registration requirements for human health and environmental effects, labeling, and presents no unreasonable adverse effects to the environment;
(hh) broadens the adoption of integrated pest management strategies, such as insecticide resistance management, or makes those strategies more effective;
(ii) is not contained in any pesticide product registered by the Administrator as of December 29, 2022; or
(jj) does not contain as attested to by the registrant, an active ingredient approved in the 2-year period preceding the date of registration by any global stringent regulatory authority for the same uses, vectors, and applications.
(II) Mosquito vector priority
For each of fiscal years 2023 through 2027, the focus of the program shall be to incentivize the development of insecticides to control and prevent the spread of mosquitoes bearing diseases described in subclause (I)(cc).
(III) Exception
If the Administrator determines that there is a significant public health benefit, an active ingredient that is registered for agricultural use that is repurposed and submitted for control of mosquitoes and that otherwise meets the requirements of subclause (I) (excluding items (bb) and (jj)) as determined necessary by the Administrator, shall be considered a mosquito control product meeting the criteria specified in such subclause.
(IV) Eligibility criteria modifications
(aa) In general
Beginning in fiscal year 2028, the Administrator shall review the program and recommend—
(AA) modifications to the requirements described in subclause (I); and
(BB) additional vectors to be included in the program, prioritizing vectors that pose the most significant population health risks.
(bb) Public involvement
In carrying out item (aa), the Administrator shall solicit the involvement of registrants, nongovernmental organizations, and governmental agencies engaged in vector-borne disease mitigation and treatment.
(v) Redemption of vouchers
To redeem a voucher, the holder shall—
(I) notify the Administrator of the intent of the holder to submit a pesticide application with a voucher for expedited review not less than 90 days before the submission of the application; and
(II) pay the applicable registration service fee under section 136w–8(b) of this title.
(vi) Expedited review
On redemption of a voucher, in furtherance of the purpose described in clause (iii), the Administrator shall expedite decision review times as follows:
(I) 6 months less than the decision review time for Category R010, New Active Ingredient, Food use.
(II) 6 months less than the decision review time for Category R020, New Active Ingredient, Food use; reduced risk.
(III) 6 months less than the decision review time for Category R060, New Active Ingredient, Non-food use; outdoor.
(IV) 6 months less than the decision review time for Category R110, New Active Ingredient, Non-food use; indoor.
(V) 4 months less than the decision review time for Category R070, New Active Ingredient, Non-food use; outdoor; reduced risk.
(VI) 2 months less than the decision review time for Category R120, New Active Ingredient, Non-food use; indoor; reduced risk.
(vii) Reports
Not later than September 30, 2025, and not later than September 30 of each year thereafter, the Administrator shall issue a report on the program, including—
(I) the number of submissions seeking a voucher;
(II) the total time in review for each such submission;
(III) the number of such vouchers awarded;
(IV) the number of such vouchers redeemed; and
(V) with respect to each such redeemed voucher—
(aa) the decision review time for the pesticide application for which the voucher was redeemed; and
(bb) the average standard decision review time for the applicable pesticide category.
(C) Unused amounts
Any unused amounts made available under this paragraph at the end of each fiscal year shall be made available to the Administrator to carry out other activities for which amounts in the Reregistration and Expedited Processing Fund are authorized to be used.
(8) Pesticide surveillance program
In addition to amounts otherwise available, for each of fiscal years 2023 through 2027, the Administrator shall use not more than $500,000 of the amounts made available to the Administrator in the Reregistration and Expedited Processing Fund to support the interagency agreement with the National Institute for Occupational Safety and Health to support the Sentinel Event Notification System for Occupational Risk pesticides program—
(A) with a goal of increasing the number of participating States, prioritizing expansion in States with the highest numbers of agricultural workers; and
(B) to improve reporting by participating States.
(9) Unused funds
Money in the fund not currently needed to carry out this section shall be—
(A) maintained on hand or on deposit;
(B) invested in obligations of the United States or guaranteed thereby; or
(C) invested in obligations, participations, or other instruments that are lawful investments for fiduciary, trust, or public funds.
(10) Accounting and performance
The Administrator shall take all steps necessary to ensure that expenditures from fees authorized by subsection (i)(1)(C)(ii) 1 are used only for the purposes described in paragraphs (2) through (8) and to carry out the goals established under subsection (l). The Reregistration and Expedited Processing Fund shall be designated as an Environmental Protection Agency component for purposes of section 3515(c) of title 31. The annual audit required under section 3521 of such title of the financial statements of activities under this subchapter under section 3515(b) of such title shall include an audit of the fees collected under subsection (i)(1)(C) and disbursed, of the amount appropriated to match such fees, and of the Administrator's attainment of performance measures and goals established under subsection (l). Such an audit shall also include a review of the reasonableness of the overhead allocation and adequacy of disclosures of direct and indirect costs associated with carrying out the reregistration and expedited processing of the applications specified in paragraph (3), and the basis for and accuracy of all costs paid with moneys derived from such fees. The Inspector General shall conduct the annual audit and report the findings and recommendations of such audit to the Administrator and to the Committees on Agriculture of the House of Representatives and the Senate. The cost of such audit shall be paid for out of the fees collected under subsection (i)(1)(C).
(l) Performance measures and goals
The Administrator shall establish and publish annually in the Federal Register performance measures and goals. Such measures and goals shall include—
(1) the number of products reregistered, canceled, or amended, the status of reregistration, the number and type of data requests under section 136a(c)(2)(B) of this title issued to support product reregistration by active ingredient, the progress in reducing the number of unreviewed, required reregistration studies, the aggregate status of tolerances reassessed, and the number of applications for registration submitted under subsection (k)(3) that were approved or disapproved;
(2) the future schedule for reregistrations, including the projection for such schedules that will be issued under subsection (g)(2)(A) and (B) in the current fiscal year and the succeeding fiscal year; and
(3) the projected year of completion of the reregistrations under this section.
(m) Judicial review
Any failure of the Administrator to take any action required by this section shall be subject to judicial review under the procedures prescribed by section 136n(b) of this title.
(n) Authorization of funds to develop public health data
(1) "Secretary" defined
For the purposes of this section, "Secretary" means the Secretary of Health and Human Services, acting through the Public Health Service.
(2) Consultation
In the case of a pesticide registered for use in public health programs for vector control or for other uses the Administrator determines to be human health protection uses, the Administrator shall, upon timely request by the registrant or any other interested person, or on the Administrator's own initiative may, consult with the Secretary prior to taking final action to suspend registration under section 136a(c)(2)(B)(iv) of this title, or cancel a registration under section 136a–1, 136d(e), or 136d(f) of this title. In consultation with the Secretary, the Administrator shall prescribe the form and content of requests under this section.
(3) Benefits to support family
The Administrator, after consulting with the Secretary, shall make a determination whether the potential benefits of continued use of the pesticide for public health or health protection purposes are of such significance as to warrant a commitment by the Secretary to conduct or to arrange for the conduct of the studies required by the Administrator to support continued registration under section 136a of this title or reregistration under this section.
(4) Additional time
If the Administrator determines that such a commitment is warranted and in the public interest, the Administrator shall notify the Secretary and shall, to the extent necessary, amend a notice issued under section 136a(c)(2)(B) of this title to specify additional reasonable time periods for submission of the data.
(5) Arrangements
The Secretary shall make such arrangements for the conduct of required studies as the Secretary finds necessary and appropriate to permit submission of data in accordance with the time periods prescribed by the Administrator. Such arrangements may include Public Health Service intramural research activities, grants, contracts, or cooperative agreements with academic, public health, or other organizations qualified by experience and training to conduct such studies.
(6) Support
The Secretary may provide for support of the required studies using funds authorized to be appropriated under this section, the Public Health Service Act [42 U.S.C. 201 et seq.], or other appropriate authorities. After a determination is made under subsection (d), the Secretary shall notify the Committees on Appropriations of the House of Representatives and the Senate of the sums required to conduct the necessary studies.
(7) Authorization of appropriations
There is authorized to be appropriated to carry out the purposes of this section $12,000,000 for fiscal year 1997, and such sums as may be necessary for succeeding fiscal years.
(June 25, 1947, ch. 125, §4, formerly §3A, as added and renumbered §4, Pub. L. 100–532, title I, §102(a), title VIII, §801(q)(2)(A), Oct. 25, 1988, 102 Stat. 2655, 2683; amended Pub. L. 101–624, title XIV, §1493, Nov. 28, 1990, 104 Stat. 3628; Pub. L. 102–237, title X, §1006(a)(4), (e), (f), Dec. 13, 1991, 105 Stat. 1895–1897; Pub. L. 104–170, title I, §103, title II, §§210(c)(2), (f)(1), 232, 237, title V, §501, Aug. 3, 1996, 110 Stat. 1490, 1496, 1498, 1508, 1509, 1536; Pub. L. 107–73, title III, [(1)–(4)], Nov. 26, 2001, 115 Stat. 686; Pub. L. 108–7, div. K, title III, [(1)–(4)], Feb. 20, 2003, 117 Stat. 513; Pub. L. 108–199, div. G, title V, §501(c), (d)(1), (e), Jan. 23, 2004, 118 Stat. 419, 422; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; Pub. L. 110–94, §4(a)–(d)(1), (e), Oct. 9, 2007, 121 Stat. 1001, 1002; Pub. L. 112–177, §2(a)(1), (2)(A), (4), Sept. 28, 2012, 126 Stat. 1327, 1329; Pub. L. 116–8, §§2(a), (b), 3, Mar. 8, 2019, 133 Stat. 484, 485; Pub. L. 117–328, div. HH, title VI, §§703(a), 704, Dec. 29, 2022, 136 Stat. 5999, 6002.)
Editorial Notes
References in Text
The effective date of this section, referred to in subsecs. (a), (c)(1), (2), and (e)(4)(A), is 60 days after Oct. 25, 1988. See Effective Date note below.
Section 136a(c)(1)(D) of this title, referred to in subsecs. (e)(1)(I) and (h), was redesignated section 136a(c)(1)(F) of this title by Pub. L. 102–237, title X, §1006(a)(3)(B), Dec. 13, 1991, 105 Stat. 1894.
The Federal Food, Drug, and Cosmetic Act, referred to in subsec. (g)(2)(A)(1), (E)(ii), is act June 25, 1938, ch. 675, 52 Stat. 1040, 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.
Section 136w–8(c)(3)(B) of this title, as such section was in effect as of March 8, 2019, referred to in subsec. (i)(1)(G)(iv), means section 136w–8(c)(3)(B) of this title as amended by Pub. L. 116–8, §5(b), and prior to its repeal and reenactment by Pub. L. 117–328, §705(b)(1). See 2022 Amendment note under section 136w–8 of this title.
The Endangered Species Act of 1973, referred to in subsec. (k)(2)(A), is Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, which is classified principally to chapter 35 (§1531 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of Title 16 and Tables.
Subsection (i)(1)(C)(ii) of this section, referred to in subsec. (k)(10), was previously a reference to subsec. (i)(5)(C)(ii), which was repealed and a new subsec. (i)(5)(C)(ii) was added by Pub. L. 108–199, §501(c)(2). Subsec. (i)(5)(C) was amended by Pub. L. 110–94, §4(a), and, as so amended, related to fees but no longer contained a cl. (ii). Subsec. (i)(5) was redesignated (i)(1) by Pub. L. 112–177, §2(a)(1)(C).
The Public Health Service Act, referred to in subsec. (n)(6), is act July 1, 1944, ch. 373, 58 Stat. 682, which is classified generally to chapter 6A (§201 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 201 of Title 42 and Tables.
Prior Provisions
A prior section 4 of act June 25, 1947, which was classified to section 136b of this title was transferred to section 11(a)–(c) of act June 25, 1947, which is classified to section 136i(a)–(c) of this title.
Another prior section 4 of act June 25, 1947, was classified to section 135b of this title prior to amendment of act June 25, 1947, by Pub. L. 92–516.
Amendments
2022—Subsec. (i)(1)(C). Pub. L. 117–328, §703(a)(1)(A), substituted "2022, and $42,000,000 for each of fiscal years 2023 through 2027" for "2023".
Subsec. (i)(1)(D)(i). Pub. L. 117–328, §703(a)(1)(B)(i), substituted "2022, and $172,000 for each of fiscal years 2023 through 2027" for "2023".
Subsec. (i)(1)(D)(ii). Pub. L. 117–328, §703(a)(1)(B)(ii), substituted "2022, and $277,200 for each of fiscal years 2023 through 2027" for "2023".
Subsec. (i)(1)(E)(i)(I). Pub. L. 117–328, §703(a)(1)(C)(i), substituted "2022, and $105,000 for each of fiscal years 2023 through 2027" for "2023".
Subsec. (i)(1)(E)(i)(II). Pub. L. 117–328, §703(a)(1)(C)(ii), substituted "2022, and $184,800 for each of fiscal years 2023 through 2027" for "2023".
Subsec. (i)(1)(G) to (M). Pub. L. 117–328, §703(a)(1)(D), (E), added subpars. (G) to (K) and redesignated former subpars. (G) and (H) as (L) and (M), respectively. Former subpar. (I) redesignated (N).
Subsec. (i)(1)(N). Pub. L. 117–328, §703(a)(1)(D), (F), redesignated subpar. (I) as (N) and substituted "2027" for "2023".
Subsec. (i)(2). Pub. L. 117–328, §703(a)(2), substituted "December 29, 2022, and ending on September 30, 2029" for "March 8, 2019, and ending on September 30, 2025" and "section 136w–8(b)(3)(B)" for "section 136w–8(b)(3)".
Subsec. (k)(2)(A). Pub. L. 117–328, §704(1), inserted "including, to the maximum extent practicable, during periods in which Environmental Protection Agency employees are on shutdown or emergency furlough as a result of a lapse in appropriations," after "limitation,".
Subsec. (k)(3), (4). Pub. L. 117–328, §704(2), added pars. (3) and (4) and struck out former pars. (3) and (4) which related, respectively, to use of maintenance fees for review of inert ingredients and expedited processing of similar applications and to expedited rulemaking and guidance development for certain product performance data requirements.
Subsec. (k)(5)(A). Pub. L. 117–328, §704(3), substituted "2023 through 2027" for "2018 through 2023".
Subsec. (k)(6) to (9). Pub. L. 117–328, §704(4), (5), added pars. (6) to (8) and redesignated former par. (6) as (9). Former par. (7) redesignated (10).
Subsec. (k)(10). Pub. L. 117–328, §704(4), (6), redesignated par. (7) as (10) and substituted "paragraphs (2) through (8)" for "paragraphs (2), (3), (4), and (5)".
2019—Subsec. (i)(1)(C). Pub. L. 116–8, §2(a)(1), substituted "an average amount of $31,000,000 for each of fiscal years 2019 through 2023" for "an aggregate amount of $27,800,000 for each of fiscal years 2013 through 2017".
Subsec. (i)(1)(D)(i). Pub. L. 116–8, §2(a)(2)(A), substituted "$129,400 for each of fiscal years 2019 through 2023" for "$115,500 for each of fiscal years 2013 through 2017".
Subsec. (i)(1)(D)(ii). Pub. L. 116–8, §2(a)(2)(B), substituted "$207,000 for each of fiscal years 2019 through 2023" for "$184,800 for each of fiscal years 2013 through 2017".
Subsec. (i)(1)(E)(i)(I). Pub. L. 116–8, §2(a)(3)(A), substituted "$79,100 for each of fiscal years 2019 through 2023" for "$70,600 for each of fiscal years 2013 through 2017".
Subsec. (i)(1)(E)(i)(II). Pub. L. 116–8, §2(a)(3)(B), substituted "$136,800 for each of fiscal years 2019 through 2023" for "$122,100 for each of fiscal years 2013 through 2017".
Subsec. (i)(1)(I). Pub. L. 116–8, §2(a)(4), substituted "2023." for "2017.."
Subsec. (i)(2). Pub. L. 116–8, §2(b), substituted "March 8, 2019, and ending on September 30, 2025" for "October 25, 1988, and ending on September 30, 2019" and inserted "or any other action covered under a table specified in section 136w–8(b)(3) of this title," after "registration of a pesticide under this subchapter".
Subsec. (k)(2)(A). Pub. L. 116–8, §3(a)(1), (2), in introductory provisions, substituted "the Reregistration and Expedited Processing Fund" for "the fund" and "paragraph (3), to offset the costs of registration review under section 136a(g) of this title, including the costs associated with any review under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) required as part of the registration review, to offset the costs associated with tracking and implementing registration review decisions, including registration review decisions designed to reduce risk, for the purposes specified in paragraphs (4) and (5), and to enhance the information systems capabilities to improve the tracking of pesticide registration decisions." for "paragraph (3), to enhance the information systems capabilities to improve the tracking of pesticide registration decisions, and to offset the costs of registration review under section 136a(g) of this title. Such moneys derived from fees may not be expended in any fiscal year to the extent such moneys derived from fees would exceed money appropriated for use by the Administrator and expended in such year for such costs of reregistration and expedited processing of such applications."
Subsec. (k)(2)(A)(i). Pub. L. 116–8, §3(a)(3), substituted "are allocated solely for the purposes specified in the first sentence of this subparagraph;" for "are allocated solely to offset the costs of reregistration and expedited processing of the applications specified in paragraph (3), to enhance the information systems capabilities to improve the tracking of pesticide registration decisions, and to offset the costs of registration review under section 136a(g) of this title;".
Subsec. (k)(2)(A)(ii). Pub. L. 116–8, §3(a)(4), substituted "necessary to achieve the purposes specified in the first sentence of this subparagraph;" for "necessary to achieve reregistration and expedited processing of the applications specified in paragraph (3), to enhance the information systems capabilities to improve the tracking of pesticide registration decisions, and to offset the costs of registration review under section 136a(g) of this title;".
Subsec. (k)(3)(A). Pub. L. 116–8, §3(b), in introductory provisions, substituted "For each of fiscal years 2018 through 2023, the Administrator shall use between 1/9 and 1/8 of the maintenance fees collected in such fiscal year to obtain sufficient personnel and resources—" for "The Administrator shall use for each of the fiscal years 2004 through 2006, approximately $3,300,000, and for each of fiscal years 2013 through 2017, between 1/9 and 1/8, of the maintenance fees collected in such fiscal year to obtain sufficient personnel and resources—".
Subsec. (k)(4). Pub. L. 116–8, §3(c), amended par. (4) generally. Prior to amendment, par. (4) related to enhancements of information technology systems for improvement in review of pesticide applications.
Subsec. (k)(5) to (7). Pub. L. 116–8, §3(d), added par. (5), redesignated former pars. (5) and (6) as (6) and (7), respectively, and substituted "paragraphs (2), (3), (4), and (5)" for "paragraphs (2), (3), and (4)" in par. (7).
2012—Subsec. (d)(5)(B)(ii)(III). Pub. L. 112–177, §2(a)(2)(A)(i), substituted "this section" for "subsection (i)(1)".
Subsec. (i)(1) to (4). Pub. L. 112–177, §2(a)(1)(C), (D), redesignated pars. (5) and (6) as (1) and (2), respectively, and struck out former pars. (1) to (4) which related to initial fee for food or feed use pesticide active ingredients, final fee for food or feed use pesticide active ingredients, fees for other pesticide active ingredients, and reduction or waiver of fees for minor use and other pesticides, respectively.
Subsec. (i)(5). Pub. L. 112–177, §2(a)(1)(D), redesignated par. (5) as (1).
Subsec. (i)(5)(C). Pub. L. 112–177, §2(a)(1)(A)(i), substituted "aggregate amount of $27,800,000 for each of fiscal years 2013 through 2017." for "aggregate amount of $22,000,000 for each of fiscal years 2008 through 2012".
Subsec. (i)(5)(D)(i). Pub. L. 112–177, §2(a)(1)(A)(ii)(I), substituted "shall be $115,500 for each of fiscal years 2013 through 2017;" for "shall be $71,000 for each of fiscal years 2008 through 2012;".
Subsec. (i)(5)(D)(ii). Pub. L. 112–177, §2(a)(1)(A)(ii)(II), substituted "shall be $184,800 for each of fiscal years 2013 through 2017." for "shall be $123,000 for each of fiscal years 2008 through 2012."
Subsec. (i)(5)(E)(i)(I). Pub. L. 112–177, §2(a)(1)(A)(iii)(I), substituted "shall be $70,600 for each of fiscal years 2013 through 2017;" for "shall be $50,000 for each of fiscal years 2008 through 2012;".
Subsec. (i)(5)(E)(i)(II). Pub. L. 112–177, §2(a)(1)(A)(iii)(II), substituted "shall be $122,100 for each of fiscal years 2013 through 2017." for "shall be $86,000 for each of fiscal years 2008 through 2012."
Subsec. (i)(5)(F). Pub. L. 112–177, §2(a)(1)(A)(vi), added subpar. (F). Former subpar. (F) redesignated (G).
Pub. L. 112–177, §2(a)(1)(A)(iv), substituted "this paragraph" for "paragraph (3)" and "Human" for "Humans".
Subsec. (i)(5)(G), (H). Pub. L. 112–177, §2(a)(1)(A)(v), redesignated subpars. (F) and (G) as (G) and (H), respectively.
Subsec. (i)(5)(I). Pub. L. 112–177, §2(a)(1)(A)(v), (vii), redesignated subpar. (H) as (I) and substituted "2017" for "2012".
Subsec. (i)(6). Pub. L. 112–177, §2(a)(1)(D), redesignated par. (6) as (2).
Pub. L. 112–177, §2(a)(1)(B), substituted "2019" for "2014" and "paragraph (1)" for "paragraphs (1) through (5)".
Subsec. (i)(7). Pub. L. 112–177, §2(a)(1)(C), struck out par. (7) which related to apportionment of certain fees among registrants of pesticides.
Subsec. (j). Pub. L. 112–177, §2(a)(2)(A)(ii), substituted "subsection (i)(1)" for "subsection (i)(5)".
Subsec. (k)(2)(A). Pub. L. 112–177, §2(a)(4)(A)(i), inserted ", to enhance the information systems capabilities to improve the tracking of pesticide registration decisions," after "paragraph (3)" wherever appearing.
Subsec. (k)(2)(A)(i). Pub. L. 112–177, §2(a)(4)(A)(ii), inserted "offset" before "the costs of reregistration" and struck out "in the same portion as appropriated funds" before semicolon at end.
Subsec. (k)(3)(A). Pub. L. 112–177, §2(a)(4)(B), in introductory provisions, substituted "2013 through 2017, between 1/9 and 1/8" for "2008 through 2012, between 1/8 and 1/7"; in cl. (i), struck out "new" before "inert"; and, in cl. (ii), substituted "any application that—" for "any application that—".
Subsec. (k)(4). Pub. L. 112–177, §2(a)(4)(C)(ii), added par. (4). Former par. (4) redesignated (5).
Subsec. (k)(5). Pub. L. 112–177, §2(a)(4)(C)(i), redesignated par. (4) as (5). Former par. (5) redesignated (6).
Pub. L. 112–177, §2(a)(2)(A)(iii), substituted "subsection (i)(1)(C)(ii)" for "subsection (i)(5)(C)(ii)" and "subsection (i)(1)(C)" for "subsection (i)(5)(C)" in two places.
Subsec. (k)(6). Pub. L. 112–177, §2(a)(4)(C)(i), (iii), redesignated par. (5) as (6) and substituted "for the purposes described in paragraphs (2), (3), and (4) and to carry out the goals established under subsection (l)" for "to carry out the goals established under subsection (l)".
2007—Subsec. (i)(5)(C). Pub. L. 110–94, §4(a), which directed substitution of "amount of $22,000,000 for each of fiscal years 2008 through 2012" for "amount of" and all that follows through the end of clause (v), was executed by making the substitution for "amount of—
"(i) for fiscal year 2004, $26,000,000;
"(ii) for fiscal year 2005, $27,000,000;
"(iii) for fiscal year 2006, $27,000,000;
"(iv) for fiscal year 2007, $21,000,000; and
"(v) for fiscal year 2008, $15,000,000."
to reflect the probable intent of Congress. The words "amount of" appeared in the heading and twice in the text.
Subsec. (i)(5)(D)(i). Pub. L. 110–94, §4(b)(1)(A), substituted "shall be $71,000 for each of fiscal years 2008 through 2012; and" for "shall be—
"(I) for fiscal year 2004, $84,000;
"(II) for each of fiscal years 2005 and 2006, $87,000;
"(III) for fiscal year 2007, $68,000; and
"(IV) for fiscal year 2008, $55,000; and".
Subsec. (i)(5)(D)(ii). Pub. L. 110–94, §4(b)(1)(B), substituted "shall be $123,000 for each of fiscal years 2008 through 2012." for "shall be—
"(I) for fiscal year 2004, $145,000;
"(II) for each of fiscal years 2005 and 2006, $151,000;
"(III) for fiscal year 2007, $117,000; and
"(IV) for fiscal year 2008, $95,000."
Subsec. (i)(5)(E)(i)(I). Pub. L. 110–94, §4(b)(2)(A), substituted "shall be $50,000 for each of fiscal years 2008 through 2012; and" for "shall be—
"(aa) for fiscal year 2004, $59,000;
"(bb) for each of fiscal years 2005 and 2006, $61,000;
"(cc) for fiscal year 2007, $48,000; and
"(dd) for fiscal year 2008, $38,500; and".
Subsec. (i)(5)(E)(i)(II). Pub. L. 110–94, §4(b)(2)(B), substituted "shall be $86,000 for each of fiscal years 2008 through 2012." for "shall be—
"(aa) for fiscal year 2004, $102,000;
"(bb) for each of fiscal years 2005 and 2006, $106,000;
"(cc) for fiscal year 2007, $82,000; and
"(dd) for fiscal year 2008, $66,500."
Subsec. (i)(5)(H). Pub. L. 110–94, §4(c), substituted "2012." for "2008".
Subsec. (i)(6). Pub. L. 110–94, §4(d)(1), substituted "2014" for "2010".
Subsec. (k)(2)(A). Pub. L. 110–94, §4(e)(1), inserted "and to offset the costs of registration review under section 136a(g) of this title" after "paragraph (3)" wherever appearing.
Subsec. (k)(3)(A). Pub. L. 110–94, §4(e)(2), substituted "2008 through 2012" for "2007 and 2008".
2004—Subsec. (g)(2)(A). Pub. L. 108–199, §501(c)(5)(A), added subpar. (A) and struck out former subpar. (A) which read as follows: "Within 1 year after the submission of all data concerning an active ingredient of a pesticide under subsection (f) of this section, the Administrator shall determine whether pesticides containing such active ingredient are eligible for reregistration. For extraordinary circumstances, the Administrator may extend such period for not more than 1 additional year."
Subsec. (g)(2)(B). Pub. L. 108–199, §501(c)(5)(B), inserted subpar. (B) and cl. (i) headings, designated first sentence of existing provisions as cl. (i), inserted cl. (ii) and subcl. (I) headings, designated second sentence of existing provisions as cl. (ii)(I), substituted "Subject to subclause (II), the Administrator" for "The Administrator" in subcl. (I), and added subcl. (II).
Subsec. (g)(2)(D). Pub. L. 108–199, §501(c)(5)(C), inserted subpar. (D) and cl. (i) headings, designated existing provisions as cl. (i), and added cl. (ii).
Subsec. (i)(5)(A). Pub. L. 108–199, §501(c)(1)(A), inserted subpar. (A) heading and substituted "for each registration" for "of—
"(i) $650 for the first registration; and
"(ii) $1,300 for each additional registration".
Subsec. (i)(5)(C). Pub. L. 108–199, §501(c)(2), struck out cl. (i) designation before "The amount of each", inserted subpar. (C) heading, substituted "aggregate amount of—" for "aggregate amount of $21,500,000 for fiscal year 2003.", added cls. (i) to (v), and struck out former cl. (ii), which related to collection of additional fees in fiscal years 1998, 1999, and 2000.
Subsec. (i)(5)(D). Pub. L. 108–199, §501(c)(1)(B), inserted subpar. (D) heading, substituted "shall be—" for "shall be $55,000; and" and added subcls. (I) to (IV) in cl. (i), and substituted "shall be—" for "shall be $95,000." and added subcls. (I) to (IV) in cl. (ii).
Subsec. (i)(5)(E)(i). Pub. L. 108–199, §501(c)(1)(C), inserted subpar. (E) and cl. (i) headings, realigned margins of subcls. (I) and (II), substituted "shall be—" for "shall be $38,500; and" and inserted items (aa) to (dd) in subcl. (I), and substituted "shall be—" for "shall be $66,500." and inserted items (aa) to (dd) in subcl. (II).
Subsec. (i)(5)(E)(ii). Pub. L. 108–199, §501(c)(3), inserted cl. (ii) heading, redesignated existing provisions as subcl. (I), inserted subcl. (I) heading, substituted "In" for "For purposes of" in subcl. (I), redesignated former subcls. (I) and (II) as items (aa) and (bb) respectively, and realigned margins, substituted "500" for "150" in item (aa), substituted "global gross revenue from pesticides that did not exceed $60,000,000." for "gross revenue from chemicals that did not exceed $40,000,000." in item (bb), and added subcl. (II).
Subsec. (i)(5)(H). Pub. L. 108–199, §501(c)(4), substituted "2008" for "2003".
Subsec. (i)(6). Pub. L. 108–199, §501(d)(1), substituted "Except as provided in section 136w–8 of this title, during" for "During", and substituted "2010" for "2003".
Subsec. (k)(2)(A)(i). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office".
Subsec. (k)(3). Pub. L. 108–199, §501(e)(1), substituted "Review of inert ingredients; expedited" for "Expedited" in par. heading.
Subsec. (k)(3)(A). Pub. L. 108–199, §501(e)(2), substituted "2004 through 2006, approximately $3,300,000, and for each of fiscal years 2007 and 2008, between 1/8 and 1/7, of the maintenance fees" for "1997 through 2003, not more than 1/10 of the maintenance fees", substituted "resources" for "resources to assure the expedited processing and review of any application that", added cl. (i), inserted cl. (ii) designation and introductory provisions, and redesignated former cls. (i) to (iii) as subcls. (I) to (III), respectively, of cl. (ii).
2003—Pub. L. 108–7, which directed the amendment of "Section 136a–1 of title 7, U.S.C.", was executed by making the amendments to this section, which is section 4 of the Federal Insecticide, Fungicide, and Rodenticide Act, to reflect the probable intent of Congress. See below.
Subsec. (i)(5)(C)(i). Pub. L. 108–7, [(1)], substituted "$21,500,000 for fiscal year 2003" for "$17,000,000 fiscal year 2002".
Subsec. (i)(5)(H). Pub. L. 108–7, [(2)], substituted "2003" for "2002".
Subsec. (i)(6). Pub. L. 108–7, [(3)], substituted "2003" for "2002".
Subsec. (k)(3)(A). Pub. L. 108–7, [(4)], substituted "2003" for "2002".
2001—Pub. L. 107–73, which directed the amendment of "Section 136a–1 of title 7, U.S.C.", was executed by making the amendments to this section, which is section 4 of the Federal Insecticide, Fungicide, and Rodenticide Act, to reflect the probable intent of Congress. See below.
Subsec. (i)(5)(C)(i). Pub. L. 107–73, [(1)], substituted "$17,000,000" for "$14,000,000" and "fiscal year 2002" for "each fiscal year".
Subsec. (i)(5)(H). Pub. L. 107–73, [(2)], substituted "2002" for "2001".
Subsec. (i)(6). Pub. L. 107–73, [(3)], substituted "2002" for "2001".
Subsec. (k)(3)(A). Pub. L. 107–73, [(4)], substituted "2002" for "2001" and "1/10" for "1/7" in introductory provisions.
1996—Pub. L. 104–170, §501, which directed amendment of section 4 without specifying the name of the Act being amended, was executed to this section, which is section 4 of the Federal Insecticide, Fungicide, and Rodenticide Act, to reflect the probable intent of Congress.
Subsec. (d)(4)(B). Pub. L. 104–170, §210(c)(2), inserted at end provisions authorizing extension of deadline for production of residue chemistry data in case of minor use and setting forth conditions to be met for such extension in cls. (i) to (iv).
Subsec. (d)(6). Pub. L. 104–170, §210(f)(1)(A), inserted at end provisions delaying upon written request action with regard to unsupported minor uses, authorizing refusal of request where there are health or environmental concerns, authorizing publication of notice in Federal Register and monitoring of development of data, setting forth procedures where registrant is not meeting or has not met schedule for production of data, and authorizing denial, modification, or revocation of temporary extension where use may cause adverse effect on environment and requiring notice of such revocation to registrant.
Subsec. (e)(2)(B). Pub. L. 104–170, §210(c)(2), inserted at end provisions authorizing extension of deadline for production of residue chemistry data in case of minor use and setting forth conditions to be met for such extension in cls. (i) to (iv).
Subsec. (e)(3)(A). Pub. L. 104–170, §210(f)(1)(B), inserted at end provisions delaying upon written request action with regard to unsupported minor uses, authorizing refusal of request where there are health or environmental concerns, authorizing publication of notice in Federal Register and monitoring of development of data, setting forth procedures where registrant is not meeting or has not met schedule for production of data, and authorizing denial, modification, or revocation of temporary extension where use may cause adverse effect on environment and requiring notice of such revocation to registrant.
Subsec. (f)(2)(B). Pub. L. 104–170, §210(c)(2), inserted at end provisions authorizing extension of deadline for production of residue chemistry data in case of minor use and setting forth conditions to be met for such extension in cls. (i) to (iv).
Subsec. (f)(3). Pub. L. 104–170, §210(f)(1)(A), inserted at end provisions delaying upon written request action with regard to unsupported minor uses, authorizing refusal of request where there are health or environmental concerns, authorizing publication of notice in Federal Register and monitoring of development of data, setting forth procedures where registrant is not meeting or has not met schedule for production of data, and authorizing denial, modification, or revocation of temporary extension where use may cause adverse effect on environment and requiring notice of such revocation to registrant.
Subsec. (g)(2)(E). Pub. L. 104–170, §103, added subpar. (E).
Subsec. (i)(4)(B) to (D). Pub. L. 104–170, §232(1), added subpar. (B) and redesignated former subpars. (B) and (C) as (C) and (D), respectively.
Subsec. (i)(5)(C). Pub. L. 104–170, §501(a)(2), designated existing provisions as cl. (i) and added cl. (ii).
Subsec. (i)(5)(F), (G). Pub. L. 104–170, §232(2), added subpar. (F) and redesignated former subpar. (F) as (G).
Subsec. (i)(5)(H). Pub. L. 104–170, §501(a)(1), substituted "2001" for "1997".
Pub. L. 104–170, §232(2), redesignated subpar. (G) as (H).
Subsec. (i)(6). Pub. L. 104–170, §501(a)(1), substituted "2001" for "1997".
Subsec. (i)(7)(B). Pub. L. 104–170, §232(3), substituted ", to determine the registrant's eligibility" for "or to determine the registrant's eligibility" and inserted before period at end ", or to determine the volume usage for public health pesticides".
Subsec. (k)(1). Pub. L. 104–170, §501(b), inserted "which shall be known as the Reregistration and Expedited Processing Fund" before period at end.
Subsec. (k)(2). Pub. L. 104–170, §501(c), amended heading and text of par. (2) generally. Prior to amendment, text read as follows: "All fees collected by the Administrator under subsection (i) of this section shall be deposited into the fund and shall be available to the Administrator, without fiscal year limitation, to carry out reregistration and expedited processing of similar applications."
Subsec. (k)(3)(A). Pub. L. 104–170, §501(d)(1), which directed the amendment of introductory provisions by substituting "for each of the fiscal years 1997 through 2001, not more than 1/7 of the maintenance fees collected in such fiscal year" for "for each of the fiscal years 1992, 1993, and 1994, 1/7th of the maintenance fees collected, up to 2 million each year", was executed by making the substitution for text which contained the phrase "$2 million", to reflect the probable intent of Congress.
Subsec. (k)(3)(A)(iii). Pub. L. 104–170, §232(4), added cl. (iii).
Subsec. (k)(3)(C). Pub. L. 104–170, §501(d)(2), added subpar. (C).
Subsec. (k)(5). Pub. L. 104–170, §501(e), amended heading and text of par. (5) generally. Prior to amendment, text read as follows: "The Administrator shall—
"(A) provide an annual accounting of the fees collected and disbursed from the fund; and
"(B) take all steps necessary to ensure that expenditures from such fund are used only to carry out this section."
Subsec. (l). Pub. L. 104–170, §501(f), added subsec. (l). Former subsec. (l) redesignated (m).
Subsec. (m). Pub. L. 104–170, §501(f), redesignated subsec. (l) as (m). Former subsec. (m) redesignated (n).
Pub. L. 104–170, §237, added subsec. (m).
Subsec. (n). Pub. L. 104–170, §501(f), redesignated subsec. (m) as (n).
1991—Subsec. (f)(3). Pub. L. 102–237, §1006(a)(4), realigned margin.
Subsec. (i)(5). Pub. L. 102–237, §1006(e), amended par. (5) generally, substituting, in subpar. (A), provisions relating to January 15 for provisions relating to March 1, in subpar. (A)(i), provisions relating to fee of $650 for first registration for provisions relating to fee of $425 for each registration for registrants holding not more than 50 registrations, and in subpar. (A)(ii), provisions relating to fee of $1,300 for each additional registration up to 200 registrations, with no fee thereafter, for provisions relating to fee of $425 for each registration up to 50, $100 for each registration over 50, with no fee after 200 registrations, redesignating provisions formerly set out in subpar. (A), following cl. (ii), as subpar. (B), and substituting provisions relating to fee under this par. for provisions relating to fee under this subpar., redesignating former subpar. (B) as (C), striking former subpar. (C), which set maximum annual fee for registrants under subpar. (A)(i) at $20,000, and for registrants under subpar. (A)(ii) at $35,000, adding subpars. (D) and (E), and redesignating former subpars. (D) and (E) as (F) and (G), respectively.
Subsec. (k)(3)(A). Pub. L. 102–237, §1006(f), substituted "for each of the fiscal years 1992, 1993, and 1994, 1/7th of the maintenance fees collected, up to $2 million each year" for "each fiscal year not more than $2,000,000 of the amounts in the fund".
1990—Subsec. (i)(5)(A). Pub. L. 101–624 inserted sentence at end relating to reduction or waiver of fee where pesticide is registered for minor agricultural use.
Statutory Notes and Related Subsidiaries
Effective Date of 2012 Amendment
Pub. L. 112–177, §2(c), Sept. 28, 2012, 126 Stat. 1407, provided that: "This section [amending this section, section 136w–8 of this title, and section 346a of Title 21, Food and Drugs, and enacting provisions set out as a note under this section] and the amendments made by this section take effect on October 1, 2012."
Effective Date of 2007 Amendment
Amendment by Pub. L. 110–94 effective Oct. 1, 2007, see section 6 of Pub. L. 110–94, set out as a note under section 136a of this title.
Effective Date of 2004 Amendment
Amendment by Pub. L. 108–199 effective on the date that is 60 days after Jan. 23, 2004, except as otherwise provided, see section 501(h) of Pub. L. 108–199, set out as a note under section 136a of this title.
Effective Date
Section effective on expiration of 60 days after Oct. 25, 1988, see section 901 of Pub. L. 100–532, set out as an Effective Date of 1988 Amendment note under section 136 of this title.
Implementation Dates With Respect to Fees
Pub. L. 117–328, div. HH, title VI, §708, Dec. 29, 2022, 136 Stat. 6082, provided that:
"(a)
"(1)
"(2)
"(b)
Extension of Limitations on Fee Amounts and Usage of Fees
Pub. L. 115–141, div. M, title IV, §401(a), Mar. 23, 2018, 132 Stat. 1049, provided that subsecs. (i)(1)(C)–(E) and (k)(3), (4) of this section and section 136w–8(c)(3)(B) of this title would continue in effect through Sept. 30, 2018.
Pub. L. 115–141, div. M, title IV, §401(b)(1), Mar. 23, 2018, 132 Stat. 1050, extended the authority under subsec. (i)(1) of this section through Sept. 30, 2018.
Relationship of Pub. L. 112–177 to Other Law
Pub. L. 112–177, §2(d), Sept. 28, 2012, 126 Stat. 1407, provided that: "In the case of any conflict between this section [amending this section, section 136w–8 of this title, and section 346a of Title 21, Food and Drugs, and enacting provisions set out as a note under this section] (including the amendments made by this section) and a joint resolution making continuing appropriations for fiscal year 2013 (including any amendments made by such a joint resolution), this section and the amendments made by this section shall control."
Adjustment of Maximum Annual Fee Payable by Pesticide Registrants
Pub. L. 108–11, title II, Apr. 16, 2003, 117 Stat. 603, provided that: "Within 30 days of enactment of this Act [Apr. 16, 2003], the Administrator of the Environmental Protection Agency shall adjust each 'maximum annual fee payable' pursuant to 7 U.S.C. 136a–1(i)(5)(D) and (E) in a manner such that maintenance fee collections made to reach the level authorized in division K of Public Law 108–7 [see Tables for classification] shall be established in the same proportion as those maintenance fee collections authorized in Public Law 107–73 [see Tables for classification]."
1 See References in Text note below.
§136b. Transferred
Editorial Notes
Codification
Section, act June 25, 1947, ch. 125, §4, as added Oct. 21, 1972, Pub. L. 92–516, §2, 86 Stat. 983; amended Nov. 28, 1975, Pub. L. 94–140, §§5, 11, 89 Stat. 753, 754; Sept. 30, 1978, Pub. L. 95–396, §9, 92 Stat. 827; Oct. 25, 1988, Pub. L. 100–532, title VIII, §801(c), (q)(1)(A), (B), 102 Stat. 2681, 2683, which related to use of restricted use pesticides and certification of applicators, was transferred to subsecs. (a) to (c) of section 11 of act June 25, 1947, by section 801(q)(1)(A) of Pub. L. 100–532 and is classified to section 136i(a) to (c) of this title.
§136c. Experimental use permits
(a) Issuance
Any person may apply to the Administrator for an experimental use permit for a pesticide. An application for an experimental use permit for a covered application under section 136w–8(b) of this title shall conform with the requirements of that section. The Administrator shall review the application. After completion of the review, but not later than one hundred and twenty days after receipt of the application and all required supporting data (or in the case of an application for an experimental use permit for a covered application under section 136w–8(b) of this title, not later than the last day of the applicable timeframe for such application specified in such section), the Administrator shall either issue the permit or notify the applicant of the Administrator's determination not to issue the permit and the reasons therefor. The applicant may correct the application or request a waiver of the conditions for such permit within thirty days of receipt by the applicant of such notification. The Administrator may issue an experimental use permit only if the Administrator determines that the applicant needs such permit in order to accumulate information necessary to register a pesticide under section 136a of this title. An application for an experimental use permit may be filed at any time.
(b) Temporary tolerance level
If the Administrator determines that the use of a pesticide may reasonably be expected to result in any residue on or in food or feed, the Administrator may establish a temporary tolerance level for the residue of the pesticide before issuing the experimental use permit.
(c) Use under permit
Use of a pesticide under an experimental use permit shall be under the supervision of the Administrator, and shall be subject to such terms and conditions and be for such period of time as the Administrator may prescribe in the permit.
(d) Studies
When any experimental use permit is issued for a pesticide containing any chemical or combination of chemicals which has not been included in any previously registered pesticide, the Administrator may specify that studies be conducted to detect whether the use of the pesticide under the permit may cause unreasonable adverse effects on the environment. All results of such studies shall be reported to the Administrator before such pesticide may be registered under section 136a of this title.
(e) Revocation
The Administrator may revoke any experimental use permit, at any time, if the Administrator finds that its terms or conditions are being violated, or that its terms and conditions are inadequate to avoid unreasonable adverse effects on the environment.
(f) State issuance of permits
Notwithstanding the foregoing provisions of this section, the Administrator shall, under such terms and conditions as the Administrator may by regulations prescribe, authorize any State to issue an experimental use permit for a pesticide. All provisions of section 136i of this title relating to State plans shall apply with equal force to a State plan for the issuance of experimental use permits under this section.
(g) Exemption for agricultural research agencies
Notwithstanding the foregoing provisions of this section, the Administrator may issue an experimental use permit for a pesticide to any public or private agricultural research agency or educational institution which applies for such permit. Each permit shall not exceed more than a one-year period or such other specific time as the Administrator may prescribe. Such permit shall be issued under such terms and conditions restricting the use of the pesticide as the Administrator may require. Such pesticide may be used only by such research agency or educational institution for purposes of experimentation.
(June 25, 1947, ch. 125, §5, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 983; amended Pub. L. 94–140, §10, Nov. 28, 1975, 89 Stat. 754; Pub. L. 95–396, §10, Sept. 30, 1978, 92 Stat. 828; Pub. L. 100–532, title VIII, §801(d), (q)(1)(D), Oct. 25, 1988, 102 Stat. 2681, 2683; Pub. L. 102–237, title X, §1006(b)(1), Dec. 13, 1991, 105 Stat. 1895; Pub. L. 116–8, §4, Mar. 8, 2019, 133 Stat. 487.)
Editorial Notes
Prior Provisions
A prior section 5 of act June 25, 1947, was classified to section 135c of this title prior to amendment of act June 25, 1947, by Pub. L. 92–516.
Amendments
2019—Subsec. (a). Pub. L. 116–8 substituted "permit for a pesticide. An application for an experimental use permit for a covered application under section 136w–8(b) of this title shall conform with the requirements of that section." for "permit for a pesticide." and inserted "(or in the case of an application for an experimental use permit for a covered application under section 136w–8(b) of this title, not later than the last day of the applicable timeframe for such application specified in such section)" after "all required supporting data".
1991—Subsecs. (b), (e), (f). Pub. L. 102–237 substituted "the Administrator" for "he" before "may" in subsec. (b), before "finds" in subsec. (e), and before "may" in subsec. (f).
1988—Subsec. (f). Pub. L. 100–532, §801(q)(1)(D), substituted "136i" for "136b".
Subsec. (g). Pub. L. 100–532, §801(d), substituted "require. Such pesticide" for "require: Provided, That such pesticide".
1978—Subsec. (a). Pub. L. 95–396, §10(1), provided for review of application, issuance or nonissuance of experimental use permit within prescribed period including reasons for denial, correction of application, and waiver of conditions and substituted provision for filing an application for experimental use permit at any time for prior provision for filing at the time of or before or after an application for registration is filed.
Subsec. (f). Pub. L. 95–396, §10(2), substituted in first sentence "shall" for "may" where first appearing.
1975—Subsec. (g). Pub. L. 94–140 added subsec. (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
For effective date of section, see section 4 of Pub. L. 92–516, set out as a note under section 136 of this title.
§136d. Administrative review; suspension
(a) Existing stocks and information
(1) Existing stocks
The Administrator may permit the continued sale and use of existing stocks of a pesticide whose registration is suspended or canceled under this section, or section 136a or 136a–1 of this title, to such extent, under such conditions, and for such uses as the Administrator determines that such sale or use is not inconsistent with the purposes of this subchapter.
(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, the registrant 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 subchapter 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 the Administrator's intent either—
(1) to cancel its registration or to change its classification together with the reasons (including the factual basis) for the Administrator's 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 and section 136w(d) of this title, 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 this subsection and of submission to the Scientific Advisory Panel pursuant to section 136w(d) of this title and proceed in accordance with subsection (c). When a public health use is affected, the Secretary of Health and Human Services should provide available benefits and use information, or an analysis thereof, in accordance with the procedures followed and subject to the same conditions as the Secretary of Agriculture in the case of agricultural pesticides. 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 the Administrator 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, the Administrator may, by order, suspend the registration of the pesticide immediately. Except as provided in paragraph (3), no order of suspension may be issued under this subsection unless the Administrator has issued, or at the same time issues, a notice of intention to cancel the registration or change the classification of the pesticide under subsection (b). 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), for 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 chapter 5 of title 5, except that the presiding officer need not be a certified administrative law judge. 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 the Administrator to hold a hearing before suspending, the Administrator may issue a suspension order in advance of notification to the registrant. The Administrator may issue an emergency order under this paragraph before issuing a notice of intention to cancel the registration or change the classification of the pesticide under subsection (b) and the Administrator shall proceed to issue the notice under subsection (b) within 90 days of issuing an emergency order. If the Administrator does not issue a notice under subsection (b) within 90 days of issuing an emergency order, the emergency order shall expire. In the case of an emergency order, 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 Agency's rules. Any person so filing briefs shall be considered a party to such proceeding for the purposes of section 136n(b) of this title.
(4) Judicial review
A final order on the question of suspension following a hearing shall be reviewable in accordance with section 136n of this title, 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 proceedings 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 subchapter. 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 the Administrator and issue an order either revoking the Administrator's 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 136a(c)(7) of this title 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 subchapter 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 subchapter. 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) A registrant may, at any time, request that a pesticide registration of the registrant be canceled or amended to terminate one or more pesticide uses.
(B) Before acting on a request under subparagraph (A), the Administrator shall publish in the Federal Register a notice of the receipt of the request and provide for a 30-day period in which the public may comment.
(C) In the case of a pesticide that is registered for a minor agricultural use, if the Administrator determines that the cancellation or termination of uses would adversely affect the availability of the pesticide for use, the Administrator—
(i) shall publish in the Federal Register a notice of the receipt of the request and make reasonable efforts to inform persons who so use the pesticide of the request; and
(ii) may not approve or reject the request until the termination of the 180-day period beginning on the date of publication of the notice in the Federal Register, except that the Administrator may waive the 180-day period upon the request of the registrant or if the Administrator determines that the continued use of the pesticide would pose an unreasonable adverse effect on the environment.
(D) Subject to paragraph (3)(B), after complying with this paragraph, the Administrator may approve or deny the request.
(2) Publication of notice
A notice of denial of registration, intent to cancel, suspension, or intent to suspend issued under this subchapter or a notice issued under subsection (c)(4) or (d)(5)(A) of section 136a–1 of this title 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.
(3) Transfer of registration of pesticides registered for minor agricultural uses
In the case of a pesticide that is registered for a minor agricultural use:
(A) During the 180-day period referred to in paragraph (1)(C)(ii), the registrant of the pesticide may notify the Administrator of an agreement between the registrant and a person or persons (including persons who so use the pesticide) to transfer the registration of the pesticide, in lieu of canceling or amending the registration to terminate the use.
(B) An application for transfer of registration, in conformance with any regulations the Administrator may adopt with respect to the transfer of the pesticide registrations, must be submitted to the Administrator within 30 days of the date of notification provided pursuant to subparagraph (A). If such an application is submitted, the Administrator shall approve the transfer and shall not approve the request for voluntary cancellation or amendment to terminate use unless the Administrator determines that the continued use of the pesticide would cause an unreasonable adverse effect on the environment.
(C) If the Administrator approves the transfer and the registrant transfers the registration of the pesticide, the Administrator shall not cancel or amend the registration to delete the use or rescind the transfer of the registration, during the 180-day period beginning on the date of the approval of the transfer unless the Administrator determines that the continued use of the pesticide would cause an unreasonable adverse effect on the environment.
(D) The new registrant of the pesticide shall assume the outstanding data and other requirements for the pesticide that are pending at the time of the transfer.
(4) Utilization of data for voluntarily canceled pesticide
When an application is filed with the Administrator for the registration of a pesticide for a minor use and another registrant subsequently voluntarily cancels its registration for an identical or substantially similar pesticide for an identical or substantially similar use, the Administrator shall process, review, and evaluate the pending application as if the voluntary cancellation had not yet taken place except that the Administrator shall not take such action if the Administrator determines that such minor use may cause an unreasonable adverse effect on the environment. In order to rely on this subsection, the applicant must certify that it agrees to satisfy any outstanding data requirements necessary to support the reregistration of the pesticide in accordance with the data submission schedule established by the Administrator.
(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 136n of this title.
(June 25, 1947, ch. 125, §6, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 984; amended Pub. L. 94–140, §1, Nov. 28, 1975, 89 Stat. 751; Pub. L. 95–251, §2(a)(2), Mar. 27, 1978, 92 Stat. 183; Pub. L. 95–396, §§11, 12, Sept. 30, 1978, 92 Stat. 828; Pub. L. 98–620, title IV, §402(4)(A), Nov. 8, 1984, 98 Stat. 3357; Pub. L. 100–532, title II, §201, title IV, §404, title VIII, §801(e), (q)(2)(B), Oct. 25, 1988, 102 Stat. 2668, 2673, 2681, 2683; Pub. L. 101–624, title XIV, §1494, Nov. 28, 1990, 104 Stat. 3628; Pub. L. 102–237, title X, §1006(a)(5), (b)(1), (2), (3)(C)–(E), Dec. 13, 1991, 105 Stat. 1895, 1896; Pub. L. 104–170, title I, §§102, 106(a), title II, §§210(g), (h), 233, Aug. 3, 1996, 110 Stat. 1489, 1491, 1500, 1509.)
Editorial Notes
Codification
"Subchapter II of chapter 5 of title 5", referred to in subsec. (c)(2), was in the original "subchapter II of Title 5", and was editorially changed to reflect the probable intent of Congress.
Prior Provisions
A prior section 6 of act June 25, 1947, was classified to section 135d of this title prior to amendment of act June 25, 1947, by Pub. L. 92–516.
Amendments
1996—Subsec. (a). Pub. L. 104–170, §106(a)(1), substituted "Existing stocks and information" for "Cancellation after five years" in heading.
Subsec. (a)(1). Pub. L. 104–170, §106(a)(2), amended heading and text generally. Prior to amendment, text read as follows: "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) of this section 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 subchapter 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."
Subsec. (b). Pub. L. 104–170, §233, inserted "When a public health use is affected, the Secretary of Health and Human Services should provide available benefits and use information, or an analysis thereof, in accordance with the procedures followed and subject to the same conditions as the Secretary of Agriculture in the case of agricultural pesticides." before "The proposed action shall become final".
Subsec. (c)(1). Pub. L. 104–170, §102(a), amended second sentence generally. Prior to amendment, second sentence read as follows: "No order of suspension may be issued unless the Administrator has issued or at the same time issues notice of the Administrator's intention to cancel the registration or change the classification of the pesticide."
Subsec. (c)(3). Pub. L. 104–170, §102(b), inserted after first sentence "The Administrator may issue an emergency order under this paragraph before issuing a notice of intention to cancel the registration or change the classification of the pesticide under subsection (b) of this section and the Administrator shall proceed to issue the notice under subsection (b) of this section within 90 days of issuing an emergency order. If the Administrator does not issue a notice under subsection (b) of this section within 90 days of issuing an emergency order, the emergency order shall expire." and substituted "In the case of an emergency order" for "In that case".
Subsec. (f)(1)(C)(ii). Pub. L. 104–170, §210(g)(1), substituted "180-day" for "90-day" in two places.
Subsec. (f)(3)(A). Pub. L. 104–170, §210(g)(2), substituted "180-day" for "90-day".
Subsec. (f)(4). Pub. L. 104–170, §210(h), added par. (4).
1991—Subsec. (a)(1). Pub. L. 102–237, §1006(b)(1), substituted "the Administrator" for "he" before "may specify" and before "determines".
Subsec. (a)(2). Pub. L. 102–237, §1006(b)(3)(C), substituted "the registrant" for "he" before "shall".
Subsec. (b). Pub. L. 102–237, §1006(b)(1), (2), substituted "the Administrator's" for "his" in introductory provisions and par. (1), and "the Administrator" for "he" before "shall publish" in last sentence.
Subsec. (c)(1). Pub. L. 102–237, §1006(b)(1), (2), substituted "the Administrator" for "he" before "may" and "the Administrator's" for "his" before "intention".
Subsec. (c)(3). Pub. L. 102–237, §1006(b)(1), (3)(D), substituted "the Administrator" for "he" before "may" and "the Administrator" for "him" after "permit".
Subsec. (d). Pub. L. 102–237, §1006(b)(2), (3)(E), in penultimate sentence substituted "the Administrator's" for "his" and "the Administrator" for "him" before "and issue".
Subsec. (f)(3)(B). Pub. L. 102–237, §1006(a)(5), substituted "adverse effect" for "adverse affect".
1990—Subsec. (f)(1). Pub. L. 101–624, §1494(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "A registrant at any time may request that any of its pesticide registrations be canceled or be 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."
Subsec. (f)(3). Pub. L. 101–624, §1494(2), added par. (3).
1988—Subsec. (a)(1). Pub. L. 100–532, §801(e)(1), substituted "effect. The Administrator" for "effect: Provided, That the Administrator".
Subsec. (c). Pub. L. 100–532, §801(e)(2)–(4), in par. (1) directed that undesignated paragraph beginning "Except as provided" be run into sentence ending "of the pesticide." and substituted "before the Administrator" for "before the Agency", in par. (2) substituted "submitted to the Administrator" for "submitted to the Agency" and "and the Administrator" for "and the Agency", and in par. (3) substituted "(A)" for "(i)", "and the Administrator" for "and the Agency", and "(B)" for "(ii)".
Subsec. (e). Pub. L. 100–532, §801(e)(5), (6), in par. (1), substituted "met. The Administrator" for "met: Provided, That the Administrator", and in par. (2), substituted "section. The only" for "section: Provided, That the only".
Subsec. (f). Pub. L. 100–532, §201, added subsec. (f). Former subsec. (f) redesignated (h).
Subsec. (f)(2). Pub. L. 100–532, §801(q)(2)(B), made a technical amendment to the reference to section 136a–1 of this title to reflect the renumbering of the corresponding section of the original act.
Subsec. (g). Pub. L. 100–532, §404, added subsec. (g).
Subsec. (h). Pub. L. 100–532, §201, redesignated former subsec. (f) as (h).
1984—Subsec. (c)(4). Pub. L. 98–620 struck out provisions requiring petitions to review orders on the issue of suspension to be advanced on the docket of the court of appeals.
1978—Subsec. (b). Pub. L. 95–396, §11, required the Administrator, in taking any final action under subsec. (b), to consider restricting a pesticide's use or uses as an alternative to cancellation and to fully explain the reasons for the restrictions.
Subsec. (c)(2). Pub. L. 95–251 substituted "administrative law judge" for "hearing examiner".
Subsecs. (e), (f). Pub. L. 95–396, §12, added subsec. (e) and redesignated former subsec. (e) as (f).
1975—Subsec. (b). Pub. L. 94–140 established criteria which Administrator must use in determining the issuance of a suspension of registration notice and the time periods relating to such notice, set forth required procedures to be followed by Administrator prior to publication of such notice, required procedures when the Secretary elects to comment or fails to comment on suspension notice, waiver or modification of time periods in specified required procedures, required procedures for waiver of notice and consent by Secretary for suspension of registration, and established criteria for Secretary taking any final action.
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.
§136e. Registration of establishments
(a) Requirement
No person shall produce any pesticide subject to this subchapter or active ingredient used in producing a pesticide subject to this subchapter in any State unless the establishment in which it is produced is registered with the Administrator. The application for registration of any establishment shall include the name and address of the establishment and of the producer who operates such establishment.
(b) Registration
Whenever the Administrator receives an application under subsection (a), the Administrator shall register the establishment and assign it an establishment number.
(c) Information required
(1) Any producer operating an establishment registered under this section shall inform the Administrator within 30 days after it is registered of the types and amounts of pesticides and, if applicable, active ingredients used in producing pesticides—
(A) which the producer is currently producing;
(B) which the producer has produced during the past year; and
(C) which the producer has sold or distributed during the past year.
The information required by this paragraph shall be kept current and submitted to the Administrator annually as required under such regulations as the Administrator may prescribe.
(2) Any such producer shall, upon the request of the Administrator for the purpose of issuing a stop sale order pursuant to section 136k of this title, inform the Administrator of the name and address of any recipient of any pesticide produced in any registered establishment which the producer operates.
(d) Confidential records and information
Any information submitted to the Administrator pursuant to subsection (c) other than the names of the pesticides or active ingredients used in producing pesticides produced, sold, or distributed at an establishment shall be considered confidential and shall be subject to the provisions of section 136h of this title.
(June 25, 1947, ch. 125, §7, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 987; amended Pub. L. 95–396, §13, Sept. 30, 1978, 92 Stat. 829; Pub. L. 102–237, title X, §1006(b)(1), (3)(F), (G), Dec. 13, 1991, 105 Stat. 1895, 1896.)
Editorial Notes
Prior Provisions
A prior section 7 of act June 25, 1947, was classified to section 135e of this title prior to amendment of act June 25, 1947, by Pub. L. 92–516.
Amendments
1991—Subsec. (b). Pub. L. 102–237, §1006(b)(1), substituted "the Administrator" for "he" before "shall".
Subsec. (c)(1)(A) to (C). Pub. L. 102–237, §1006(b)(3)(F), substituted "the producer" for "he".
Subsec. (c)(2). Pub. L. 102–237, §1006(b)(3)(G), substituted "the Administrator" for "him" after "inform" and "the producer" for "he".
1978—Subsec. (a). Pub. L. 95–396, §13(1), made requirement of registration applicable to production of active ingredient used in producing a pesticide subject to this subchapter.
Subsec. (c)(1). Pub. L. 95–396, §13(2), required information pertaining to types and amounts of active ingredients used in producing pesticides where applicable.
Subsec. (d). Pub. L. 95–396, §13(3), considered names of pesticides or active ingredients used in producing pesticides produced, sold, or distributed at an establishment as not being confidential information.
Statutory Notes and Related Subsidiaries
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.
§136f. Books and records
(a) Requirements
The Administrator may prescribe regulations requiring producers, registrants, and applicants for registration to maintain such records with respect to their operations and the pesticides and devices produced as the Administrator determines are necessary for the effective enforcement of this subchapter and to make the records available for inspection and copying in the same manner as provided in subsection (b). No records required under this subsection shall extend to financial data, sales data other than shipment data, pricing data, personnel data, and research data (other than data relating to registered pesticides or to a pesticide for which an application for registration has been filed).
(b) Inspection
For the purposes of enforcing the provisions of this subchapter, any producer, distributor, carrier, dealer, or any other person who sells or offers for sale, delivers or offers for delivery any pesticide or device subject to this subchapter, shall, upon request of any officer or employee of the Environmental Protection Agency or of any State or political subdivision, duly designated by the Administrator, furnish or permit such person at all reasonable times to have access to, and to copy: (1) all records showing the delivery, movement, or holding of such pesticide or device, including the quantity, the date of shipment and receipt, and the name of the consignor and consignee; or (2) in the event of the inability of any person to produce records containing such information, all other records and information relating to such delivery, movement, or holding of the pesticide or device. Any inspection with respect to any records and information referred to in this subsection shall not extend to financial data, sales data other than shipment data, pricing data, personnel data; and research data (other than data relating to registered pesticides or to a pesticide for which an application for registration has been filed). Before undertaking an inspection under this subsection, the officer or employee must present to the owner, operator, or agent in charge of the establishment or other place where pesticides or devices are held for distribution or sale, appropriate credentials and a written statement as to the reason for the inspection, including a statement as to whether a violation of the law is suspected. If no violation is suspected, an alternate and sufficient reason shall be given in writing. Each such inspection shall be commenced and completed with reasonable promptness.
(June 25, 1947, ch. 125, §8, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 987; amended Pub. L. 95–396, §14, Sept. 30, 1978, 92 Stat. 829; Pub. L. 100–532, title III, §301, Oct. 25, 1988, 102 Stat. 2668; Pub. L. 102–237, title X, §1006(b)(1), Dec. 13, 1991, 105 Stat. 1895.)
Editorial Notes
Prior Provisions
A prior section 8 of act June 25, 1947, was classified to section 135f of this title prior to amendment of act June 25, 1947, by Pub. L. 92–516.
Amendments
1991—Subsec. (a). Pub. L. 102–237 substituted "the Administrator" for "he" before "determines".
1988—Subsec. (a). Pub. L. 100–532 inserted ", registrants, and applicants for registration" after "requiring producers" and "and to make the records available for inspection and copying in the same manner as provided in subsection (b) of this section" before period at end of first sentence.
1978—Subsec. (b). Pub. L. 95–396 required, in connection 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 reasonable 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 Environmental Protection Agency or of any State duly designated by the Administrator are authorized to enter at reasonable times (A) any establishment 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 containers or labeling for such pesticides or devices, or (B) any place where there is being held any pesticide the registration of which has been suspended or canceled for the purpose of determining compliance with section 136q of this title.
(2) Before undertaking such inspection, the officers or employees must present to the owner, operator, or agent in charge of the establishment or other place where pesticides or devices are held for distribution or sale, appropriate credentials and a written statement as to the reason for the inspection, including a statement as to whether a violation of the law is suspected. If no violation is suspected, an alternate and sufficient reason shall be given in writing. Each such inspection shall be commenced and completed with reasonable promptness. If the officer or employee 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 requested, 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 subchapter have been violated, officers or employees 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 registered (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 delivery, 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 Protection 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 contemplated. 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 Administrator shall certify the facts to the Attorney General, with a copy of the results of the analysis or the examination of such pesticide for the institution of a criminal proceeding pursuant 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 purposes 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 institution of any proceeding by the Attorney General.
(3) Warning notices
Nothing in this subchapter shall be construed as requiring the Administrator to institute proceedings for prosecution of minor violations of this subchapter whenever the Administrator 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.
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), substituted "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 copying of records for purposes of this section or section 136f of this title" for "entry for the purpose of this section".
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 information
(a) In general
In submitting data required by this subchapter, the applicant may (1) clearly mark any portions thereof which in the applicant's opinion are trade secrets or commercial or financial information and (2) submit such market material 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 Administrator shall not make public information which in the Administrator's judgment contains or relates to trade secrets or commercial or financial 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 subchapter may be revealed to any Federal agency consulted and may be revealed at a public hearing or in findings of fact issued by the Administrator.
(c) Disputes
If the Administrator proposes to release for inspection information which the applicant or registrant 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 period, the applicant or registrant may institute an action in an appropriate district court for a declaratory judgment as to whether such information 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 registration 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 control 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 ingredient 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, distribution, sale, or inventories of a pesticide that is otherwise entitled to confidential treatment under subsection (b) of this section may be publicly disclosed in connection with a public proceeding 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 disclosure 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 subsection, the Administrator shall notify by certified mail the submitter of such information of the intent to release such information. The Administrator 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 disclosure 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 appropriate. During such period the data submitter may institute an action in an appropriate district court to enjoin or limit the proposed disclosure. The court may enjoin disclosure, 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 required to protect against an unreasonable risk of injury to health or the environment; or
(B) in the case of information described in paragraph (2) of this subsection, the public interest in availability of the information in the public proceeding does not outweigh the interests in preserving the confidentiality of the information.
(e) Disclosure to contractors
Information otherwise protected from disclosure to the public under subsection (b) of this section may be disclosed to contractors with the United States and employees of such contractors if, in the opinion of the Administrator, such disclosure is necessary for the satisfactory performance 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 specify. The Administrator shall require as a condition to the disclosure of information under this subsection that the person receiving it take such security precautions respecting the information 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 employment or official position, has obtained possession 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 otherwise obtained under this subchapter. Nothing in this subchapter shall preempt any civil remedy under State or Federal law for wrongful disclosure of trade secrets.
(2) For the purposes of this section, any contractor with the United States who is furnished information as authorized by subsection (e) of this section, or any employee of any such contractor, shall be considered to be an employee of the United States.
(g) Disclosure to foreign and multinational pesticide producers
(1) The Administrator shall not knowingly disclose information submitted by an applicant or registrant under this subchapter to any employee 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. Notwithstanding any other provision of this subsection, the Administrator may disclose information to any person in connection with a public proceeding under law or regulation, subject to restrictions 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 disclosed under this subsection and the persons or organizations they represent and shall inform the applicant or registrant of the names and affiliations 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), substituted "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), substituted "public. The use" for "public: Provided, That the use" and "title. This paragraph" for "title: Provided further, That this paragraph", and in par. (3), "notice. Where" for "notice: Provided, That where".
1984—Subsec. (d)(3). Pub. L. 98–620 struck out provisions requiring the court to give expedited consideration to actions involving injunctions or limitations of proposed disclosure.
1978—Subsec. (b). Pub. L. 95–396, §15(1), made disclosure 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 subsecs. (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.
§136i. Use of restricted use pesticides; applicators
(a) Certification procedure
(1) Federal certification
In any State for which a State plan for applicator certification has not been approved by the Administrator, the Administrator, in consultation 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 subsection (a)(2) of this section and shall not require private applicators to take any examination to establish competency in the use of pesticides. 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 available 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 during 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 request from the Governor. In any State in which the Administrator conducts a certification program, the Administrator may require 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 restricted use to maintain such records and submit such reports concerning the commercial application, sale, or distribution of such pesticide as the Administrator may by regulation prescribe. Subject to paragraph (2), the Administrator 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 competent 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 certification 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 adequate information and affirmations to carry out the intent of this subchapter, and may include in the form an affirmation that the private applicator has completed a training program 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 examination to establish competency in the use of the pesticide. The Administrator may require any pesticide dealer participating in a certification program to be licensed under a State licensing program approved by the Administrator.
(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 purpose. The Administrator shall approve the plan submitted by any State, or any modification thereof, if such plan in the Administrator's judgment—
(A) designates a State agency as the agency responsible for administering the plan throughout the State;
(B) contains satisfactory assurances that such agency has or will have the legal authority and qualified personnel necessary to carry out the plan;
(C) gives satisfactory assurances that the State will devote adequate funds to the administration 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 applicators 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 section.
(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 determines that a State is not administering the certification program in accordance with the plan approved under this section, the Administrator shall so notify the State and provide for a hearing at the request of the State, and, if appropriate 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 materials concerning integrated pest management techniques available to individuals at their request in accordance with the provisions of section 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 techniques. The Administrator and States implementing such plans shall provide that all interested individuals are notified on the availability of such instructional materials.
(d) In general
No regulations prescribed by the Administrator for carrying out the provisions of this subchapter shall require any private applicator to maintain any records or file any reports or other documents.
(e) Separate standards
When establishing or approving standards for licensing or certification, the Administrator shall establish separate standards for commercial and private applicators.
(June 25, 1947, ch. 125, §11, formerly §§4, 11, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 983, 989; amended Pub. L. 94–140, §§5, 11, Nov. 28, 1975, 89 Stat. 753, 754; Pub. L. 95–396, §9, Sept. 30, 1978, 92 Stat. 827; Pub. L. 100–532, title VIII, §801(c), (q)(1)(A)–(C), Oct. 25, 1988, 102 Stat. 2681, 2683; Pub. L. 102–237, title X, §1006(a)(6), (b)(1), (2), (3)(K), Dec. 13, 1991, 105 Stat. 1895, 1896.)
Editorial Notes
Codification
Pub. L. 100–532, §801(q)(1)(A), transferred subsecs. (a) to (c) of section 4 of act June 25, 1947, which was classified to section 136b of this title, to subsecs. (a) to (c) of this section.
Prior Provisions
A prior section 11 of act June 25, 1947, was classified to section 135i of this title prior to amendment of act June 25, 1947, by Pub. L. 92–516.
Amendments
1991—Pub. L. 102–237, §1006(a)(6)(A), substituted "applicators" for "appplicators" in section catchline.
Subsec. (a)(1). Pub. L. 102–237, §1006(b)(3)(K), substituted "the applicator" for "his" in ninth sentence and "the Administrator" for "him" before period at end.
Subsec. (a)(2). Pub. L. 102–237, §1006(b)(2), substituted "the Administrator's" for "his" in introductory provisions.
Subsec. (b). Pub. L. 102–237, §1006(a)(6)(B), (b)(1), substituted "subsection (a)(2) of this section" for "this paragraph" in two places and "the Administrator" for "he" before "shall afford" and before "shall so notify".
Subsec. (c). Pub. L. 102–237, §1006(a)(6)(C), substituted "subsection (a)" for "subsections (a) and (b)" after "Administrator under".
1988—Pub. L. 100–532, §801(q)(1)(A), (C), substituted section catchline for one which read: "Standards applicable to pesticide applicators", redesignated subsecs. (a) and (b) as (d) and (e), respectively, and transferred subsecs. (a) to (c) of section 136b of this title to subsecs. (a) to (c), respectively, of this section.
Subsec. (a)(1). Pub. L. 100–532, §801(c), substituted "pesticides. Such program" for "pesticides: Provided, That such program" and "certification. The certification" for "certification: Provided, however, That the certification".
1978—Subsec. (a)(1). Pub. L. 95–396 required that, in any State without a State plan for applicator certification approved by the Administrator, the Administrator, in consultation with the Governor of the State, shall conduct a program for the certification of applicators of pesticides under a Federal plan for applicator certification, and also that in such a State records be maintained and reports submitted by persons engaged in commercial application, sale or distribution of pesticides classified for restricted use.
1975—Subsec. (a)(1). Pub. L. 94–140, §5, inserted proviso relating to Administrator's powers and duties with respect to the certification forms and requirement for pesticide dealers participating in certification program.
Subsec. (c). Pub. L. 94–140, §11, added subsec. (c).
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.
§136i–1. Pesticide recordkeeping
(a) Requirements
(1) The Secretary of Agriculture, in consultation with the Administrator of the Environmental Protection Agency, shall require certified applicators of restricted use pesticides (of the type described under section 136a(d)(1)(C) of this title) to maintain records comparable to records maintained by commercial applicators of pesticides in each State. If there is no State requirement for the maintenance of records, such applicator shall maintain records that contain the product name, amount, approximate date of application, and location of application of each such pesticide used for a 2-year period after such use.
(2) Within 30 days of a pesticide application, a commercial certified applicator shall provide a copy of records maintained under paragraph (1) to the person for whom such application was provided.
(b) Access
Records maintained under subsection (a) shall be made available to any Federal or State agency that deals with pesticide use or any health or environmental issue related to the use of pesticides, on the request of such agency. Each such Federal agency shall conduct surveys and record the data from individual applicators to facilitate statistical analysis for environmental and agronomic purposes, but in no case may a government agency release data, including the location from which the data was derived, that would directly or indirectly reveal the identity of individual producers. In the case of Federal agencies, such access to records maintained under subsection (a) shall be through the Secretary of Agriculture, or the Secretary's designee. State agency requests for access to records maintained under subsection (a) shall be through the lead State agency so designated by the State.
(c) Health care personnel
When a health professional determines that pesticide information maintained under this section is necessary to provide medical treatment or first aid to an individual who may have been exposed to pesticides for which the information is maintained, upon request persons required to maintain records under subsection (a) shall promptly provide record and available label information to that health professional. In the case of an emergency, such record information shall be provided immediately.
(d) Penalty
The Secretary of Agriculture shall be responsible for the enforcement of subsections (a), (b), and (c). A violation of such subsection shall—
(1) in the case of the first offense, be subject to a fine of not more than $500; and
(2) in the case of subsequent offenses, be subject to a fine of not less than $1,000 for each violation, except that the penalty shall be less than $1,000 if the Secretary determines that the person made a good faith effort to comply with such subsection.
(e) Federal or State provisions
The requirements of this section shall not affect provisions of other Federal or State laws.
(f) Surveys and reports
The Secretary of Agriculture and the Administrator of the Environmental Protection Agency, shall survey the records maintained under subsection (a) to develop and maintain a data base that is sufficient to enable the Secretary and the Administrator to publish annual comprehensive reports concerning agricultural and nonagricultural pesticide use. The Secretary and Administrator shall enter into a memorandum of understanding to define their respective responsibilities under this subsection in order to avoid duplication of effort. Such reports shall be transmitted to Congress not later than April 1 of each year.
(g) Regulations
The Secretary of Agriculture and the Administrator of the Environmental Protection Agency shall promulgate regulations on their respective areas of responsibility implementing this section within 180 days after November 28, 1990.
(Pub. L. 101–624, title XIV, §1491, Nov. 28, 1990, 104 Stat. 3627; Pub. L. 102–237, title X, §1006(d), Dec. 13, 1991, 105 Stat. 1896.)
Editorial Notes
Codification
Section was enacted as part of the Conservation Program Improvements Act, and also as part of the Food, Agriculture, Conservation, and Trade Act of 1990, and not as part of the Federal Insecticide, Fungicide, and Rodenticide Act which comprises this subchapter.
Amendments
1991—Subsec. (a)(1). Pub. L. 102–237, §1006(d)(1), inserted closing parenthesis after "section 136a(d)(1)(C) of this title".
Subsec. (d)(1). Pub. L. 102–237, §1006(d)(2), inserted "of" after "fine".
§136i–2. Collection of pesticide use information
(a) In general
The Secretary of Agriculture shall collect data of statewide or regional significance on the use of pesticides to control pests and diseases of major crops and crops of dietary significance, including fruits and vegetables.
(b) Collection
The data shall be collected by surveys of farmers or from other sources offering statistically reliable data.
(c) Coordination
The Secretary of Agriculture shall, as appropriate, coordinate with the Administrator of the Environmental Protection Agency in the design of the surveys and make available to the Administrator the aggregate results of the surveys to assist the Administrator.
(Pub. L. 104–170, title III, §302, Aug. 3, 1996, 110 Stat. 1512.)
Editorial Notes
Codification
Section was enacted as part of the Food Quality Protection Act of 1996, and not as part of the Federal Insecticide, Fungicide, and Rodenticide Act which comprises this subchapter.
Statutory Notes and Related Subsidiaries
Pesticide Use Information Study
Pub. L. 104–170, title III, §305, Aug. 3, 1996, 110 Stat. 1512, required the Secretary of Agriculture, in consultation with the Administrator of the Environmental Protection Agency, to prepare a report to Congress evaluating the current status and potential improvements in Federal pesticide use information gathering activities and to submit the report not later than 1 year following Aug. 3, 1996.
§136j. Unlawful acts
(a) In general
(1) Except as provided by subsection (b), it shall be unlawful for any person in any State to distribute or sell to any person—
(A) any pesticide that is not registered under section 136a of this title or whose registration has been canceled or suspended, except to the extent that distribution or sale otherwise has been authorized by the Administrator under this subchapter;
(B) any registered pesticide if any claims made for it as a part of its distribution or sale substantially differ from any claims made for it as a part of the statement required in connection with its registration under section 136a of this title;
(C) any registered pesticide the composition of which differs at the time of its distribution or sale from its composition as described in the statement required in connection with its registration under section 136a of this title;
(D) any pesticide which has not been colored or discolored pursuant to the provisions of section 136w(c)(5) of this title;
(E) any pesticide which is adulterated or misbranded; or
(F) any device which is misbranded.
(2) It shall be unlawful for any person—
(A) to detach, alter, deface, or destroy, in whole or in part, any labeling required under this subchapter;
(B) to refuse to—
(i) prepare, maintain, or submit any records required by or under section 136c, 136e, 136f, 136i, or 136q of this title;
(ii) submit any reports required by or under section 136c, 136d, 136e, 136f, 136i, or 136q of this title; or
(iii) allow any entry, inspection, copying of records, or sampling authorized by this subchapter;
(C) to give a guaranty or undertaking provided for in subsection (b) which is false in any particular, except that a person who receives and relies upon a guaranty authorized under subsection (b) may give a guaranty to the same effect, which guaranty shall contain, in addition to the person's own name and address, the name and address of the person residing in the United States from whom the person received the guaranty or undertaking;
(D) to use for the person's own advantage or to reveal, other than to the Administrator, or officials or employees of the Environmental Protection Agency or other Federal executive agencies, or to the courts, or to physicians, pharmacists, and other qualified persons, needing such information for the performance of their duties, in accordance with such directions as the Administrator may prescribe, any information acquired by authority of this subchapter which is confidential under this subchapter;
(E) who is a registrant, wholesaler, dealer, retailer, or other distributor to advertise a product registered under this subchapter for restricted use without giving the classification of the product assigned to it under section 136a of this title;
(F) to distribute or sell, or to make available for use, or to use, any registered pesticide classified for restricted use for some or all purposes other than in accordance with section 136a(d) of this title and any regulations thereunder, except that it shall not be unlawful to sell, under regulations issued by the Administrator, a restricted use pesticide to a person who is not a certified applicator for application by a certified applicator;
(G) to use any registered pesticide in a manner inconsistent with its labeling;
(H) to use any pesticide which is under an experimental use permit contrary to the provisions of such permit;
(I) to violate any order issued under section 136k of this title;
(J) to violate any suspension order issued under section 136a(c)(2)(B), 136a–1, or 136d of this title;
(K) to violate any cancellation order issued under this subchapter or to fail to submit a notice in accordance with section 136d(g) of this title;
(L) who is a producer to violate any of the provisions of section 136e of this title;
(M) to knowingly falsify all or part of any application for registration, application for experimental use permit, any information submitted to the Administrator pursuant to section 136e of this title, any records required to be maintained pursuant to this subchapter, any report filed under this subchapter, or any information marked as confidential and submitted to the Administrator under any provision of this subchapter;
(N) who is a registrant, wholesaler, dealer, retailer, or other distributor to fail to file reports required by this subchapter;
(O) to add any substance to, or take any substance from, any pesticide in a manner that may defeat the purpose of this subchapter;
(P) to use any pesticide in tests on human beings unless such human beings (i) are fully informed of the nature and purposes of the test and of any physical and mental health consequences which are reasonably foreseeable therefrom, and (ii) freely volunteer to participate in the test;
(Q) to falsify all or part of any information relating to the testing of any pesticide (or any ingredient, metabolite, or degradation product thereof), including the nature of any protocol, procedure, substance, organism, or equipment used, observation made, or conclusion or opinion formed, submitted to the Administrator, or that the person knows will be furnished to the Administrator or will become a part of any records required to be maintained by this subchapter;
(R) to submit to the Administrator data known to be false in support of a registration; or
(S) to violate any regulation issued under section 136a(a) or 136q of this title.
(b) Exemptions
The penalties provided for a violation of paragraph (1) of subsection (a) shall not apply to—
(1) any person who establishes a guaranty signed by, and containing the name and address of, the registrant or person residing in the United States from whom the person purchased or received in good faith the pesticide in the same unbroken package, to the effect that the pesticide was lawfully registered at the time of sale and delivery to the person, and that it complies with the other requirements of this subchapter, and in such case the guarantor shall be subject to the penalties which would otherwise attach to the person holding the guaranty under the provisions of this subchapter;
(2) any carrier while lawfully shipping, transporting, or delivering for shipment any pesticide or device, if such carrier upon request of any officer or employee duly designated by the Administrator shall permit such officer or employee to copy all of its records concerning such pesticide or device;
(3) any public official while engaged in the performance of the official duties of the public official;
(4) any person using or possessing any pesticide as provided by an experimental use permit in effect with respect to such pesticide and such use or possession; or
(5) any person who ships a substance or mixture of substances being put through tests in which the purpose is only to determine its value for pesticide purposes or to determine its toxicity or other properties and from which the user does not expect to receive any benefit in pest control from its use.
(June 25, 1947, ch. 125, §12, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 989; amended Pub. L. 95–396, §16, Sept. 30, 1978, 92 Stat. 832; Pub. L. 100–532, title VI, §§601(b)(2), 603, title VIII, §801(g), (q)(2)(B), Oct. 25, 1988, 102 Stat. 2677, 2678, 2682, 2683; Pub. L. 102–237, title X, §1006(a)(7), (b)(3)(L)–(O), Dec. 13, 1991, 105 Stat. 1895, 1896.)
Editorial Notes
Prior Provisions
A prior section 12 of act June 25, 1947, was classified to section 135j of this title prior to amendment of act June 25, 1947, by Pub. L. 92–516.
Amendments
1991—Subsec. (a)(2)(C). Pub. L. 102–237, §1006(b)(3)(L), substituted "the person's" for "his" and "the person" for "he" before "received".
Subsec. (a)(2)(D). Pub. L. 102–237, §1006(b)(3)(M), substituted "the person's" for "his".
Subsec. (a)(2)(F). Pub. L. 102–237, §1006(a)(7)(A), substituted "thereunder, except that it" for "thereunder. It".
Subsec. (a)(2)(O). Pub. L. 102–237, §1006(a)(7)(B), struck out "or" after semicolon at end.
Subsec. (a)(2)(P). Pub. L. 102–237, §1006(a)(7)(C), substituted a semicolon for period at end.
Subsec. (b)(1). Pub. L. 102–237, §1006(b)(3)(N), substituted "the person" for "he" after "from whom" and for "him" after "delivery to".
Subsec. (b)(3). Pub. L. 102–237, §1006(b)(3)(O), substituted "the official duties of the public official" for "his official duties".
1988—Subsec. (a)(1). Pub. L. 100–532, §601(b)(2)(A), in introductory provisions, substituted "distribute or sell to any person" for "distribute, sell, offer for sale, hold for sale, ship, deliver for shipment, or receive and (having so received) deliver or offer to deliver, to any person".
Subsec. (a)(1)(A). Pub. L. 100–532, §603(1), added subpar. (A) and struck out former subpar. (A) which read as follows: "any pesticide which is not registered under section 136a of this title, except as provided by section 136d(a)(1) of this title;".
Subsec. (a)(2)(B). Pub. L. 100–532, §603(2)(A), added subpar. (B) and struck out former subpar. (B) which read as follows: "to refuse to keep any records required pursuant to section 136f of this title, or to refuse to allow inspection of any records or establishment pursuant to section 136f or 136g of this title, or to refuse to allow an officer or employee of the Environmental Protection Agency to take a sample of any pesticide pursuant to section 136g of this title;".
Subsec. (a)(2)(F). Pub. L. 100–532, §§601(b)(2)(B), 801(g), substituted "to distribute or sell, or to make" for "to make" and "thereunder, It" for "thereunder: Provided, That it".
Subsec. (a)(2)(J). Pub. L. 100–532, §801(q)(2)(B), made a technical amendment to the reference to section 136a–1 of this title to reflect the renumbering of the corresponding section of the original act.
Pub. L. 100–532, §603(2)(B), added subpar. (J) and struck out former subpar. (J) which read as follows: "to violate any suspension order issued under section 136d of this title;".
Subsec. (a)(2)(K). Pub. L. 100–532, §603(2)(B), added subpar. (K) and struck out former subpar. (K) which read as follows: "to violate any cancellation of registration of a pesticide under section 136d of this title, except as provided by section 136d(a)(1) of this title;".
Subsec. (a)(2)(M). Pub. L. 100–532, §603(2)(C), substituted "this subchapter" for "section 136f of this title".
Subsec. (a)(2)(Q), (R), (S). Pub. L. 100–532, §603(2)(D), added subpars. (Q), (R), and (S).
1978—Subsec. (a)(2)(F). Pub. L. 95–396 inserted proviso exempting from prohibition the sale, under regulations issued by the Administrator, of a restricted use pesticide to a person who is not a certified applicator for application by a certified applicator.
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.
§136k. Stop sale, use, removal, and seizure
(a) Stop sale, etc., orders
Whenever any pesticide or device is found by the Administrator in any State and there is reason to believe on the basis of inspection or tests that such pesticide or device is in violation of any of the provisions of this subchapter, or that such pesticide or device has been or is intended to be distributed or sold in violation of any such provisions, or when the registration of the pesticide has been canceled by a final order or has been suspended, the Administrator may issue a written or printed "stop sale, use, or removal" order to any person who owns, controls, or has custody of such pesticide or device, and after receipt of such order no person shall sell, use, or remove the pesticide or device described in the order except in accordance with the provisions of the order.
(b) Seizure
Any pesticide or device that is being transported or, having been transported, remains unsold or in original unbroken packages, or that is sold or offered for sale in any State, or that is imported from a foreign country, shall be liable to be proceeded against in any district court in the district where it is found and seized for confiscation by a process in rem for condemnation if—
(1) in the case of a pesticide—
(A) it is adulterated or misbranded;
(B) it is not registered pursuant to the provisions of section 136a of this title;
(C) its labeling fails to bear the information required by this subchapter;
(D) it is not colored or discolored and such coloring or discoloring is required under this subchapter; or
(E) any of the claims made for it or any of the directions for its use differ in substance from the representations made in connection with its registration;
(2) in the case of a device, it is misbranded; or
(3) in the case of a pesticide or device, when used in accordance with the requirements imposed under this subchapter and as directed by the labeling, it nevertheless causes unreasonable adverse effects on the environment.
In the case of a plant regulator, defoliant, or desiccant, used in accordance with the label claims and recommendations, physical or physiological effects on plants or parts thereof shall not be deemed to be injury, when such effects are the purpose for which the plant regulator, defoliant, or desiccant was applied.
(c) Disposition after condemnation
If the pesticide or device is condemned it shall, after entry of the decree, be disposed of by destruction or sale as the court may direct and the proceeds, if sold, less the court costs, shall be paid into the Treasury of the United States, but the pesticide or device shall not be sold contrary to the provisions of this subchapter or the laws of the jurisdiction in which it is sold. On payment of the costs of the condemnation proceedings and the execution and delivery of a good and sufficient bond conditioned that the pesticide or device shall not be sold or otherwise disposed of contrary to the provisions of the subchapter or the laws of any jurisdiction in which sold, the court may direct that such pesticide or device be delivered to the owner thereof. The proceedings of such condemnation cases shall conform, as near as may be to the proceedings in admiralty, except that either party may demand trial by jury of any issue of fact joined in any case, and all such proceedings shall be at the suit of and in the name of the United States.
(d) Court costs, etc.
When a decree of condemnation is entered against the pesticide or device, court costs and fees, storage, and other proper expenses shall be awarded against the person, if any, intervening as claimant of the pesticide or device.
(June 25, 1947, ch. 125, §13, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 991; amended Pub. L. 100–532, title VIII, §801(h), Oct. 25, 1988, 102 Stat. 2682.)
Editorial Notes
Prior Provisions
A prior section 13 of act June 25, 1947, was classified to section 135k of this title prior to amendment of act June 25, 1947, by Pub. L. 92–516.
Amendments
1988—Subsec. (b). Pub. L. 100–532, §801(h)(1), directed that sentence beginning "In the case of" be moved from par. (3) and become a full measure sentence after par. (3).
Subsec. (c). Pub. L. 100–532, §801(h)(2), substituted "sold. On" for "sold: Provided, That upon".
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.
§136l. Penalties
(a) Civil penalties
(1) In general
Any registrant, commercial applicator, wholesaler, dealer, retailer, or other distributor who violates any provision of this subchapter may be assessed a civil penalty by the Administrator of not more than $5,000 for each offense.
(2) Private applicator
Any private applicator or other person not included in paragraph (1) who violates any provision of this subchapter subsequent to receiving a written warning from the Administrator or following a citation for a prior violation, may be assessed a civil penalty by the Administrator of not more than $1,000 for each offense, except that any applicator not included under paragraph (1) of this subsection who holds or applies registered pesticides, or uses dilutions of registered pesticides, only to provide a service of controlling pests without delivering any unapplied pesticide to any person so served, and who violates any provision of this subchapter may be assessed a civil penalty by the Administrator of not more than $500 for the first offense nor more than $1,000 for each subsequent offense.
(3) Hearing
No civil penalty shall be assessed unless the person charged shall have been given notice and opportunity for a hearing on such charge in the county, parish, or incorporated city of the residence of the person charged.
(4) Determination of penalty
In determining the amount of the penalty, the Administrator shall consider the appropriateness of such penalty to the size of the business of the person charged, the effect on the person's ability to continue in business, and the gravity of the violation. Whenever the Administrator finds that the violation occurred despite the exercise of due care or did not cause significant harm to health or the environment, the Administrator may issue a warning in lieu of assessing a penalty.
(5) References to Attorney General
In case of inability to collect such civil penalty or failure of any person to pay all, or such portion of such civil penalty as the Administrator may determine, the Administrator shall refer the matter to the Attorney General, who shall recover such amount by action in the appropriate United States district court.
(b) Criminal penalties
(1) In general
(A) Any registrant, applicant for a registration, or producer who knowingly violates any provision of this subchapter shall be fined not more than $50,000 or imprisoned for not more than 1 year, or both.
(B) Any commercial applicator of a restricted use pesticide, or any other person not described in subparagraph (A) who distributes or sells pesticides or devices, who knowingly violates any provision of this subchapter shall be fined not more than $25,000 or imprisoned for not more than 1 year, or both.
(2) Private applicator
Any private applicator or other person not included in paragraph (1) who knowingly violates any provision of this subchapter shall be guilty of a misdemeanor and shall on conviction be fined not more than $1,000, or imprisoned for not more than 30 days, or both.
(3) Disclosure of information
Any person, who, with intent to defraud, uses or reveals information relative to formulas of products acquired under the authority of section 136a of this title, shall be fined not more than $10,000, or imprisoned for not more than three years, or both.
(4) Acts of officers, agents, etc.
When construing and enforcing the provisions of this subchapter, the act, omission, or failure of any officer, agent, or other person acting for or employed by any person shall in every case be also deemed to be the act, omission, 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 subsequent offense against any applicator providing a service of controlling pests for violations of this subchapter.
Subsec. (a)(3). Pub. L. 95–396, §17(2), struck out provision respecting certain considerations when determining 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 Administrator 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 registration or that an emergency order of suspension of a registration under section 136d(c)(3) of this title has been issued;
(B) the registration in question is suspended 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 Administrator finds that the person—
(A) had knowledge of facts that, in themselves, 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 indemnification, the Administrator shall report to the Committee on Agriculture of the House of Representatives, the Committee on Agriculture, 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 payment 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 registration or that an emergency order of suspension of a registration under section 136d(c)(3) of this title has been issued;
(B) the registration in question is suspended 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 subparagraph (A), owned any quantity of the pesticide for purposes of applying or using the pesticide as an end user, rather than for purposes of distributing or selling it or further processing it for distribution or sale, suffered 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 quantity of the pesticide.
(2) Dealers and distributors
(A) Any registrant, wholesaler, dealer, or other distributor (hereinafter in this paragraph 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 suspension or cancellation of the pesticide, reimburse such person for the cost of first acquiring 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 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 registration or that an emergency order of suspension of a registration under section 136d(c)(3) of this title has been issued;
(ii) the registration in question is suspended 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 reimbursement 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 distribution 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 Administrator 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 provide such reimbursement;
the person shall be entitled to an indemnity payment under this subsection for such quantity 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 paragraph by a seller who is unable to make a reimbursement in accordance with this paragraph 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 appropriation 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 section 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 determined on the basis of the cost of the pesticide owned by the person (other than the cost of transportation, if any) immediately before the issuance of the notice to the registrant 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 exceed 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 otherwise 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 provisions 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)
"(2)
§136n. Administrative procedure; judicial review
(a) District court review
Except as otherwise provided in this subchapter, the refusal of the Administrator to cancel or suspend a registration or to change a classification not following a hearing and other final actions of the Administrator not committed to the discretion of the Administrator by law are judicially reviewable by the district courts of the United States.
(b) Review by court of appeals
In the case of actual controversy as to the validity of any order issued by the Administrator following a public hearing, any person who will be adversely affected by such order and who had been a party to the proceedings may obtain judicial review by filing in the United States court of appeals for the circuit wherein such person resides or has a place of business, within 60 days after the entry of such order, a petition praying that the order be set aside in whole or in part. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Administrator or any officer designated by the Administrator for that purpose, and thereupon the Administrator shall file in the court the record of the proceedings on which the Administrator based the Administrator's order, as provided in section 2112 of title 28. Upon the filing of such petition the court shall have exclusive jurisdiction to affirm or set aside the order complained of in whole or in part. The court shall consider all evidence of record. The order of the Administrator shall be sustained if it is supported by substantial evidence when considered on the record as a whole. The judgment of the court affirming or setting aside, in whole or in part, any order under this section shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28. The commencement of proceedings under this section shall not, unless specifically ordered by the court to the contrary, operate as a stay of an order.
(c) Jurisdiction of district courts
The district courts of the United States are vested with jurisdiction specifically to enforce, and to prevent and restrain violations of, this subchapter.
(d) Notice of judgments
The Administrator shall, by publication in such manner as the Administrator may prescribe, give notice of all judgments entered in actions instituted under the authority of this subchapter.
(June 25, 1947, ch. 125, §16, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 994; amended Pub. L. 98–620, title IV, §402(4)(C), Nov. 8, 1984, 98 Stat. 3357; Pub. L. 100–532, title VIII, §801(i), Oct. 25, 1988, 102 Stat. 2682; Pub. L. 102–237, title X, §1006(b)(1), (2), (3)(P), Dec. 13, 1991, 105 Stat. 1895, 1896.)
Editorial Notes
Amendments
1991—Subsec. (b). Pub. L. 102–237, §1006(b)(1), (2), (3)(P), substituted "the Administrator" for "he" before "based", "the Administrator's" for "his", and "the Administrator" for "him" after "designated by".
Subsec. (d). Pub. L. 102–237, §1006(b)(1), substituted "the Administrator" for "he" before "may".
1988—Subsec. (a). Pub. L. 100–532 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: "Except as is otherwise provided in this subchapter, Agency refusals to cancel or suspend registrations or change classifications not following a hearing and other final Agency actions not committed to Agency discretion by law are judicially reviewable in the district courts."
1984—Subsec. (b). Pub. L. 98–620 struck out provisions requiring the court to advance on the docket and expedite the disposition of all cases filed pursuant to this section.
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.
§136o. Imports and exports
(a) Pesticides and devices intended for export
Notwithstanding any other provision of this subchapter, no pesticide or device or active ingredient used in producing a pesticide intended solely for export to any foreign country shall be deemed in violation of this subchapter—
(1) when prepared or packed according to the specifications or directions of the foreign purchaser, except that producers of such pesticides and devices and active ingredients used in producing pesticides shall be subject to sections 136(p), 136(q)(1)(A), (C), (D), (E), (G), and (H), 136(q)(2)(A), (B), (C)(i) and (iii), and (D), 136e, and 136f of this title; and
(2) in the case of any pesticide other than a pesticide registered under section 136a or sold under section 136d(a)(1) of this title, if, prior to export, the foreign purchaser has signed a statement acknowledging that the purchaser understands that such pesticide is not registered for use in the United States and cannot be sold in the United States under this subchapter.
A copy of that statement shall be transmitted to an appropriate official of the government of the importing country.
(b) Cancellation notices furnished to foreign governments
Whenever a registration, or a cancellation or suspension of the registration of a pesticide becomes effective, or ceases to be effective, the Administrator shall transmit through the State Department notification thereof to the governments of other countries and to appropriate international agencies. Such notification shall, upon request, include all information related to the cancellation or suspension of the registration of the pesticide and information concerning other pesticides that are registered under section 136a of this title and that could be used in lieu of such pesticide.
(c) Importation of pesticides and devices
(1) In general
The Secretary of the Treasury shall notify the Administrator of the arrival of pesticides and devices and shall deliver to the Administrator, upon the Administrator's request, samples of pesticides or devices which are being imported into the United States, giving notice to the owner or consignee, who may appear before the Administrator and have the right to introduce testimony. If it appears from the examination of a sample that it is adulterated, or misbranded or otherwise violates the provisions set forth in this subchapter, or is otherwise injurious to health or the environment, the pesticide or device may be refused admission, and the Secretary of the Treasury shall refuse delivery to the consignee and shall cause the destruction of any pesticide or device refused delivery which shall not be exported by the consignee within 90 days from the date of notice of such refusal under such regulations as the Secretary of the Treasury may prescribe. The Secretary of the Treasury may deliver to the consignee such pesticide or device pending examination and decision in the matter on execution of bond for the amount of the full invoice value of such pesticide or device, together with the duty thereon, and on refusal to return such pesticide or device for any cause to the custody of the Secretary of the Treasury, when demanded, for the purpose of excluding them from the country, or for any other purpose, said consignee shall forfeit the full amount of said bond. All charges for storage, cartage, and labor on pesticides or devices which are refused admission or delivery shall be paid by the owner or consignee, and in default of such payment shall constitute a lien against any future importation made by such owner or consignee.
(2) Importation of seed
Notwithstanding any other provision of law, no person is required to notify the Administrator of the arrival of a plant-incorporated protectant (as defined in section 174.3 of title 40, Code of Federal Regulations (or any successor regulation)) that is contained in a seed, if—
(A) that plant-incorporated protectant is registered under section 136a of this title;
(B) the Administrator has issued an experimental use permit for that plant-incorporated protectant under section 136c of this title; or
(C) the seed is covered by a permit (as defined in part 340 of title 7, Code of Federal Regulations (or any successor regulation)) or a notification.
(3) Cooperation
(A) In general
In response to a request from the Administrator, the Secretary of Agriculture shall provide to the Administrator a list of seed containing plant-incorporated protectants (as defined in section 174.3 of title 40, Code of Federal Regulations (or any successor regulation)) if the importation of that seed into the United States has been approved under a permit or notification referred to in paragraph (2).
(B) Contents
The list under subparagraph (A) shall be provided in a form and at such intervals as may be agreed to by the Secretary and the Administrator.
(4) Applicability
Nothing in this subsection precludes or limits the authority of the Secretary of Agriculture with respect to the importation or movement of plants, plant products, or seeds under—
(A) the Plant Protection Act (7 U.S.C. 7701 et seq.); and
(B) the Federal Seed Act (7 U.S.C. 1551 et seq.).
(d) Cooperation in international efforts
(1) In general
The Administrator shall, in cooperation with the Department of State and any other appropriate Federal agency, participate and cooperate in any international efforts to develop improved pesticide research and regulations.
(2) Department of State expenses
Any expenses incurred by an employee of the Environmental Protection Agency who participates in any international technical, economic, or policy review board, committee, or other official body that is meeting in relation to an international treaty shall be paid by the Department of State.
(e) Regulations
The Secretary of the Treasury, in consultation with the Administrator, shall prescribe regulations for the enforcement of subsection (c) of this section.
(June 25, 1947, ch. 125, §17, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 995; amended Pub. L. 95–396, §18(a), Sept. 30, 1978, 92 Stat. 833; Pub. L. 100–532, title VIII, §801(j), Oct. 25, 1988, 102 Stat. 2682; Pub. L. 102–237, title X, §1006(a)(9), (b)(2), Dec. 13, 1991, 105 Stat. 1895; Pub. L. 110–234, title XIV, §14209(a), May 22, 2008, 122 Stat. 1463; Pub. L. 110–246, §4(a), title XIV, §14209(a), June 18, 2008, 122 Stat. 1664, 2225; Pub. L. 113–79, title X, §10008, Feb. 7, 2014, 128 Stat. 948.)
Editorial Notes
References in Text
The Plant Protection Act, referred to in subsec. (c)(4)(A), is title IV of Pub. L. 106–224, June 20, 2000, 114 Stat. 438, which is classified principally to chapter 104 (§7701 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 7701 of this title and Tables.
The Federal Seed Act, referred to in subsec. (c)(4)(B), is act Aug. 9, 1939, ch. 615, 53 Stat. 1275, which is classified generally to chapter 37 (§1551 et seq.) of this title. For complete classification of this Act to the Code, see section 1551 of this title and Tables.
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2014—Subsec. (c). Pub. L. 113–79 designated existing provisions as par. (1), inserted heading, and added pars. (2) to (4).
2008—Subsec. (d). Pub. L. 110–246, §14209(a), designated existing provisions as par. (1), inserted heading, and added par. (2).
1991—Subsec. (a). Pub. L. 102–237, §1006(a)(9), removed last sentence from par. (2) and placed it as a full measure sentence under par. (2).
Subsec. (c). Pub. L. 102–237, §1006(b)(2), substituted "the Administrator's" for "his".
1988—Subsec. (c). Pub. L. 100–532 substituted "prescribe. The Secretary" for "prescribe: Provided, That the Secretary" and "bond. All" for "bond: And provided further, That all".
1978—Subsec. (a). Pub. L. 95–396, §18(a)(1), amended subsec. (a) generally.
Subsec. (b). Pub. L. 95–396, §18(a)(2), inserted sentence at end relating to information to be included in notification.
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
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 1978 Amendment
Pub. L. 95–396, §18(b), Sept. 30, 1978, 92 Stat. 833, provided that: "The amendment made by subsection (a)(1) of this section [amending this section] shall become effective one hundred and eighty days after the date of enactment of this Act [Sept. 30, 1978]."
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.
§136p. Exemption of Federal and State agencies
The Administrator may, at the Administrator's discretion, exempt any Federal or State agency from any provision of this subchapter if the Administrator determines that emergency conditions exist which require such exemption. The Administrator, in determining whether or not such emergency conditions exist, shall consult with the Secretary of Agriculture and the Governor of any State concerned if they request such determination.
(June 25, 1947, ch. 125, §18, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 995; amended Pub. L. 94–140, §8, Nov. 28, 1975, 89 Stat. 754; Pub. L. 100–532, title VIII, §801(k), Oct. 25, 1988, 102 Stat. 2682; Pub. L. 102–237, title X, §1006(b)(1), (2), Dec. 13, 1991, 105 Stat. 1895.)
Editorial Notes
Amendments
1991—Pub. L. 102–237 substituted "the Administrator" for "he" before "determines" and "the Administrator's" for "his".
1988—Pub. L. 100–532 substituted "and" for "or" in section catchline, and directed that sentence beginning "The Administrator, in" be run in after first sentence beginning "The Administrator may".
1975—Pub. L. 94–140 inserted provision requiring Administrator to consult with Secretary of Agriculture and Governor of State concerned in determining whether an emergency situation exists.
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.
Statutory Notes and Related Subsidiaries
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.
§136q. Storage, disposal, transportation, and recall
(a) Storage, disposal, and transportation
(1) Data requirements and registration of pesticides
The Administrator may require under section 136a or 136d of this title that—
(A) the registrant or applicant for registration of a pesticide submit or cite data or information regarding methods for the safe storage and disposal of excess quantities of the pesticide to support the registration or continued registration of a pesticide;
(B) the labeling of a pesticide contain requirements and procedures for the transportation, storage, and disposal of the pesticide, any container of the pesticide, any rinsate containing the pesticide, or any other material used to contain or collect excess or spilled quantities of the pesticide; and
(C) the registrant of a pesticide provide evidence of sufficient financial and other resources to carry out a recall plan under subsection (b), and provide for the disposition of the pesticide, in the event of suspension and cancellation of the pesticide.
(2) Pesticides
The Administrator may by regulation, or as part of an order issued under section 136d of this title or an amendment to such an order—
(A) issue requirements and procedures to be followed by any person who stores or transports a pesticide the registration of which has been suspended or canceled;
(B) issue requirements and procedures to be followed by any person who disposes of stocks of a pesticide the registration of which has been suspended; and
(C) issue requirements and procedures for the disposal of any pesticide the registration of which has been canceled.
(3) Containers, rinsates, and other materials
The Administrator may by regulation, or as part of an order issued under section 136d of this title or an amendment to such an order—
(A) issue requirements and procedures to be followed by any person who stores or transports any container of a pesticide the registration of which has been suspended or canceled, any rinsate containing the pesticide, or any other material used to contain or collect excess or spilled quantities of the pesticide;
(B) issue requirements and procedures to be followed by any person who disposes of stocks of any container of a pesticide the registration of which has been suspended, any rinsate containing the pesticide, or any other material used to contain or collect excess or spilled quantities of the pesticide; and
(C) issue requirements and procedures for the disposal of any container of a pesticide the registration of which has been canceled, any rinsate containing the pesticide, or any other material used to contain or collect excess or spilled quantities of the pesticide.
(4) Container recycling
The Secretary may promulgate a regulation for the return and recycling of disposable pesticide containers used for the distribution or sale of registered pesticide products in interstate commerce. Any such regulation requiring recycling of disposable pesticide containers shall not apply to antimicrobial pesticides (as defined in section 136 of this title) or other pesticide products intended for non-agricultural uses.
(b) Recalls
(1) In general
If the registration of a pesticide has been suspended and canceled under section 136d of this title, and if the Administrator finds that recall of the pesticide is necessary to protect health or the environment, the Administrator shall order a recall of the pesticide in accordance with this subsection.
(2) Voluntary recall
If, after determining under paragraph (1) that a recall is necessary, the Administrator finds that voluntary recall by the registrant and others in the chain of distribution may be as safe and effective as a mandatory recall, the Administrator shall request the registrant of the pesticide to submit, within 60 days of the request, a plan for the voluntary recall of the pesticide. If such a plan is requested and submitted, the Administrator shall approve the plan and order the registrant to conduct the recall in accordance with the plan unless the Administrator determines, after an informal hearing, that the plan is inadequate to protect health or the environment.
(3) Mandatory recall
If, after determining under paragraph (1) that a recall is necessary, the Administrator does not request the submission of a plan under paragraph (2) or finds such a plan to be inadequate, the Administrator shall issue a regulation that prescribes a plan for the recall of the pesticide. A regulation issued under this paragraph may apply to any person who is or was a registrant, distributor, or seller of the pesticide, or any successor in interest to such a person.
(4) Recall procedure
A regulation issued under this subsection may require any person that is subject to the regulation to—
(A) arrange to make available one or more storage facilities to receive and store the pesticide to which the recall program applies, and inform the Administrator of the location of each such facility;
(B) accept and store at such a facility those existing stocks of such pesticide that are tendered by any other person who obtained the pesticide directly or indirectly from the person that is subject to such regulation;
(C) on the request of a person making such a tender, provide for proper transportation of the pesticide to a storage facility; and
(D) take such reasonable steps as the regulation may prescribe to inform persons who may be holders of the pesticide of the terms of the recall regulation and how those persons may tender the pesticide and arrange for transportation of the pesticide to a storage facility.
(5) Contents of recall plan
A recall plan established under this subsection shall include—
(A) the level in the distribution chain to which the recall is to extend, and a schedule for recall; and
(B) the means to be used to verify the effectiveness of the recall.
(6) Requirements or procedures
No requirement or procedure imposed in accordance with paragraph (2) of subsection (a) may require the recall of existing stocks of the pesticide except as provided by this subsection.
(c) Storage costs
(1) Submission of plan
A registrant who wishes to become eligible for reimbursement of storage costs incurred as a result of a recall prescribed under subsection (b) for a pesticide whose registration has been suspended and canceled shall, as soon as practicable after the suspension of the registration of the pesticide, submit to the Administrator a plan for the storage and disposal of the pesticide that meets criteria established by the Administrator by regulation.
(2) Reimbursement
Within a reasonable period of time after such storage costs are incurred and paid by the registrant, the Administrator shall reimburse the registrant, on request, for—
(A) none of the costs incurred by the registrant before the date of submission of the plan referred to in paragraph (1) to the Administrator;
(B) 100 percent of the costs incurred by the registrant after the date of submission of the plan to the Administrator or the date of cancellation of the registration of the pesticide, whichever is later, but before the approval of the plan by the Administrator;
(C) 50 percent of the costs incurred by the registrant during the 1-year period beginning on the date of the approval of the plan by the Administrator or the date of cancellation of the registration of the pesticide, whichever is later;
(D) none of the costs incurred by the registrant during the 3-year period beginning on the 366th day following approval of the plan by the Administrator or the date of cancellation of the registration of the pesticide, whichever is later; and
(E) 25 percent of the costs incurred by the registrant during the period beginning on the first day of the 5th year following the date of the approval of the plan by the Administrator or the date of cancellation of the registration of the pesticide, whichever is later, and ending on the date that a disposal permit for the pesticide is issued by a State or an alternative plan for disposal of the pesticide in accordance with applicable law has been developed.
(d) Administration of storage, disposal, transportation, and recall programs
(1) Voluntary agreements
Nothing in this section shall be construed as preventing or making unlawful any agreement between a seller and a buyer of any pesticide or other substance regarding the ultimate allocation of the costs of storage, transportation, or disposal of a pesticide.
(2) Rule and regulation review
Section 136w(a)(4) of this title shall not apply to any regulation issued under subsection (a)(2) or (b).
(3) Limitations
No registrant shall be responsible under this section for a pesticide the registration of which is held by another person. No distributor or seller shall be responsible under this section for a pesticide that the distributor or seller did not hold or sell.
(4) Seizure and penalties
If the Administrator finds that a person who is subject to a regulation or order under subsection (a)(2) or (b) has failed substantially to comply with that regulation or order, the Administrator may take action under section 136k or 136l of this title or obtain injunctive relief under section 136n(c) of this title against such person or any successor in interest of any such person.
(e) Container design
(1) Procedures
(A) Not later than 3 years after the effective date of this subsection, the Administrator shall, in consultation with the heads of other interested Federal agencies, promulgate regulations for the design of pesticide containers that will promote the safe storage and disposal of pesticides.
(B) The regulations shall ensure, to the fullest extent practicable, that the containers—
(i) accommodate procedures used for the removal of pesticides from the containers and the rinsing of the containers;
(ii) facilitate the safe use of the containers, including elimination of splash and leakage of pesticides from the containers;
(iii) facilitate the safe disposal of the containers; and
(iv) facilitate the safe refill and reuse of the containers.
(2) Compliance
The Administrator shall require compliance with the regulations referred to in paragraph (1) not later than 5 years after the effective date of this subsection.
(f) Pesticide residue removal
(1) Procedures
(A) Not later than 3 years after the effective date of this subsection, the Administrator shall, in consultation with the heads of other interested Federal agencies, promulgate regulations prescribing procedures and standards for the removal of pesticides from containers prior to disposal.
(B) The regulations may—
(i) specify, for each major type of pesticide container, procedures and standards providing for, at a minimum, triple rinsing or the equivalent degree of pesticide removal;
(ii) specify procedures that can be implemented promptly and easily in various circumstances and conditions;
(iii) provide for reuse, whenever practicable, or disposal of rinse water and residue; and
(iv) be coordinated with requirements for the rinsing of containers imposed under the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.).
(C) The Administrator may, at the discretion of the Administrator, exempt products intended solely for household use from the requirements of this subsection.
(2) Compliance
Effective beginning 5 years after the effective date of this subsection, a State may not exercise primary enforcement responsibility under section 136w–1 of this title, or certify an applicator under section 136i of this title, unless the Administrator determines that the State is carrying out an adequate program to ensure compliance with this subsection.
(3) Solid Waste Disposal Act
Nothing in this subsection shall affect the authorities or requirements concerning pesticide containers under the Solid Waste Disposal Act (42 U.S.C. 6901).
(g) Pesticide container study
(1) Study
(A) The Administrator shall conduct a study of options to encourage or require—
(i) the return, refill, and reuse of pesticide containers;
(ii) the development and use of pesticide formulations that facilitate the removal of pesticide residues from containers; and
(iii) the use of bulk storage facilities to reduce the number of pesticide containers requiring disposal.
(B) In conducting the study, the Administrator shall—
(i) consult with the heads of other interested Federal agencies, State agencies, industry groups, and environmental organizations; and
(ii) assess the feasibility, costs, and environmental benefits of encouraging or requiring various measures or actions.
(2) Report
Not later than 2 years after the effective date of this subsection, the Administrator shall submit to Congress a report describing the results of the study required under paragraph (1).
(h) Relationship to Solid Waste Disposal Act
(1) In general
Nothing in this section shall diminish the authorities or requirements of the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.).
(2) Antimicrobial products
A household, industrial, or institutional antimicrobial product that is not subject to regulation under the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) shall not be subject to the provisions of subsections (a), (e), and (f), unless the Administrator determines that such product must be subject to such provisions to prevent an unreasonable adverse effect on the environment.
(June 25, 1947, ch. 125, §19, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 995; amended Pub. L. 95–396, §19, Sept. 30, 1978, 92 Stat. 833; Pub. L. 100–532, title IV, §§401–403, title VIII, §801(q)(1)(D), Oct. 25, 1988, 102 Stat. 2669, 2672, 2683; Pub. L. 104–170, title II, §225, Aug. 3, 1996, 110 Stat. 1507; Pub. L. 110–234, title XIV, §14209(b), May 22, 2008, 122 Stat. 1463; Pub. L. 110–246, §4(a), title XIV, §14209(b), June 18, 2008, 122 Stat. 1664, 2225.)
Editorial Notes
References in Text
The effective date of this subsection, referred to in subsecs. (e), (f)(1)(A), (2), and (g)(2), is 60 days after Oct. 25, 1988, the effective date of Pub. L. 100–532. See Effective Date of 1988 Amendment note below.
The Solid Waste Disposal Act, referred to in subsecs. (f)(1)(B)(iv), (3) and (h), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94–580, §2, Oct. 21, 1976, 90 Stat. 2795, which is classified generally to chapter 82 (§6901 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of Title 42 and Tables.
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2008—Subsec. (a)(4). Pub. L. 110–246, §14209(b), added par. (4).
1996—Subsec. (h). Pub. L. 104–170 designated existing provisions as par. (1), inserted heading, and added par. (2).
1988—Pub. L. 100–532, §401, amended section generally, in subsec. (a) substituting provisions which related to storage, disposal, and transportation, for provisions which directed Secretary to establish procedures for disposal or storage, in subsec. (b) substituting provisions which related to recalls, for provisions which directed Administrator to provide advice to Secretary of Transportation, in subsec. (c) substituting provisions which related to storage costs, for provisions which related to disposal of unused quantities, and adding subsec. (d).
Subsec. (a)(3). Pub. L. 100–532, §402, added par. (3).
Subsecs. (e), (f). Pub. L. 100–532, §403, added subsecs. (e) and (f).
Subsec. (f)(2). Pub. L. 100–532, §801(q)(1)(D), substituted "136i" for "136b".
Subsecs. (g), (h). Pub. L. 100–532, §403, added subsecs. (g) and (h).
1978—Subsec. (c). Pub. L. 95–396 added subsec. (c).
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
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.
§136r. Research and monitoring
(a) Research
The Administrator shall undertake research including research by grant or contract with other Federal agencies, universities, or others as may be necessary to carry out the purposes of this subchapter, and the Administrator shall conduct research into integrated pest management in coordination with the Secretary of Agriculture. The Administrator shall also take care to ensure that such research does not duplicate research being undertaken by any other Federal agency.
(b) National monitoring plan
The Administrator shall formulate and periodically revise, in cooperation with other Federal, State, or local agencies, a national plan for monitoring pesticides.
(c) Monitoring
The Administrator shall undertake such monitoring activities, including, but not limited to monitoring in air, soil, water, man, plants, and animals, as may be necessary for the implementation of this subchapter and of the national pesticide monitoring plan. The Administrator shall establish procedures for the monitoring of man and animals and their environment for incidential 1 pesticide exposure, including, but not limited to, the quantification of incidental human and environmental pesticide pollution and the secular trends thereof, and identification of the sources of contamination and their relationship to human and environmental effects. Such activities shall be carried out in cooperation with other Federal, State, and local agencies.
(June 25, 1947, ch. 125, §20, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 996; amended Pub. L. 95–396, §20, Sept. 30, 1978, 92 Stat. 834; Pub. L. 102–237, title X, §1006(a)(10), (b)(1), Dec. 13, 1991, 105 Stat. 1895.)
Editorial Notes
Amendments
1991—Subsec. (a). Pub. L. 102–237 substituted "ensure" for "insure" and "the Administrator" for "he" before "shall conduct".
1978—Subsec. (a). Pub. L. 95–396, §20(1), substituted in first sentence "shall conduct research into integrated pest management in coordination with the Secretary of Agriculture" for "shall give priority to research to develop biologically integrated alternatives for pest control".
Subsec. (c). Pub. L. 95–396, §20(2), inserted provision requiring establishment of monitoring procedures and the carrying out of the activities in cooperation with other Federal, State, and local agencies.
Statutory Notes and Related Subsidiaries
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.
Availability of Grants
Pub. L. 106–74, title III, Oct. 20, 1999, 113 Stat. 1081, provided in part: "That notwithstanding 7 U.S.C. 136r and 15 U.S.C. 2609, beginning in fiscal year 2000 and thereafter, grants awarded under section 20 of the Federal Insecticide, Fungicide, and Rodenticide Act [7 U.S.C. 136r], as amended, and section 10 of the Toxic Substances Control Act [15 U.S.C. 2609], as amended, shall be available for research, development, monitoring, public education, training, demonstrations, and studies".
1 So in original. Probably should be "incidental".
§136r–1. Integrated Pest Management
The Secretary of Agriculture, in cooperation with the Administrator, shall implement research, demonstration, and education programs to support adoption of Integrated Pest Management. Integrated Pest Management is a sustainable approach to managing pests by combining biological, cultural, physical, and chemical tools in a way that minimizes economic, health, and environmental risks. The Secretary of Agriculture and the Administrator shall make information on Integrated Pest Management widely available to pesticide users, including Federal agencies. Federal agencies shall use Integrated Pest Management techniques in carrying out pest management activities and shall promote Integrated Pest Management through procurement and regulatory policies, and other activities.
(Pub. L. 104–170, title III, §303, Aug. 3, 1996, 110 Stat. 1512.)
Editorial Notes
Codification
Section was enacted as part of the Food Quality Protection Act of 1996, and not as part of the Federal Insecticide, Fungicide, and Rodenticide Act which comprises this subchapter.
§136s. Solicitation of comments; notice of public hearings
(a) Secretary of Agriculture
The Administrator, before publishing regulations under this subchapter, shall solicit the views of the Secretary of Agriculture in accordance with the procedure described in section 136w(a) of this title.
(b) Secretary of Health and Human Services
The Administrator, before publishing regulations under this subchapter for any public health pesticide, shall solicit the views of the Secretary of Health and Human Services in the same manner as the views of the Secretary of Agriculture are solicited under section 136w(a)(2) of this title.
(c) Views
In addition to any other authority relating to public hearings and solicitation of views, in connection with the suspension or cancellation of a pesticide registration or any other actions authorized under this subchapter, the Administrator may, at the Administrator's discretion, solicit the views of all interested persons, either orally or in writing, and seek such advice from scientists, farmers, farm organizations, and other qualified persons as the Administrator deems proper.
(d) Notice
In connection with all public hearings under this subchapter the Administrator shall publish timely notice of such hearings in the Federal Register.
(June 25, 1947, ch. 125, §21, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 996; amended Pub. L. 94–140, §2(b), Nov. 28, 1975, 89 Stat. 752; Pub. L. 100–532, title VIII, §801(l), Oct. 25, 1988, 102 Stat. 2682; Pub. L. 102–237, title X, §1006(b)(1), (2), Dec. 13, 1991, 105 Stat. 1895; Pub. L. 104–170, title II, §234, Aug. 3, 1996, 110 Stat. 1509.)
Editorial Notes
Amendments
1996—Subsecs. (b) to (d). Pub. L. 104–170 added subsec. (b) and redesignated former subsecs. (b) and (c) as (c) and (d), respectively.
1991—Subsec. (b). Pub. L. 102–237 substituted "the Administrator" for "he" before "deems" and "the Administrator's" for "his".
1988—Pub. L. 100–532, §801(l), inserted headings for subsecs. (a) to (c).
1975—Subsec. (a). Pub. L. 94–140 inserted "in accordance with the procedure described in section 136w(a) of this title" after "Secretary of Agriculture".
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.
§136t. Delegation and cooperation
(a) Delegation
All authority vested in the Administrator by virtue of the provisions of this subchapter may with like force and effect be executed by such employees of the Environmental Protection Agency as the Administrator may designate for the purpose.
(b) Cooperation
The Administrator shall cooperate with Department of Agriculture, any other Federal agency, and any appropriate agency of any State or any political subdivision thereof, in carrying out the provisions of this subchapter, and in securing uniformity of regulations.
(June 25, 1947, ch. 125, §22, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 996.)
Statutory Notes and Related Subsidiaries
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.
§136u. State cooperation, aid, and training
(a) Cooperative agreements
The Administrator may enter into cooperative agreements with States and Indian tribes—
(1) to delegate to any State or Indian tribe the authority to cooperate in the enforcement of this subchapter through the use of its personnel or facilities, to train personnel of the State or Indian tribe to cooperate in the enforcement of this subchapter, and to assist States and Indian tribes in implementing cooperative enforcement programs through grants-in-aid; and
(2) to assist States in developing and administering State programs, and Indian tribes that enter into cooperative agreements, to train and certify applicators consistent with the standards the Administrator prescribes.
Effective with the fiscal year beginning October 1, 1978, there are authorized to be appropriated annually such funds as may be necessary for the Administrator to provide through cooperative agreements an amount equal to 50 percent of the anticipated cost to each State or Indian tribe, as agreed to under such cooperative agreements, of conducting training and certification programs during such fiscal year. If funds sufficient to pay 50 percent of the costs for any year are not appropriated, the share of each State and Indian tribe shall be reduced in a like proportion in allocating available funds.
(b) Contracts for training
In addition, the Administrator may enter into contracts with Federal, State, or Indian tribal agencies for the purpose of encouraging the training of certified applicators.
(c) Information and education
The Administrator shall, in cooperation with the Secretary of Agriculture, use the services of the cooperative State extension services to inform and educate pesticide users about accepted uses and other regulations made under this subchapter.
(June 25, 1947, ch. 125, §23, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 996; amended Pub. L. 95–396, §21, Sept. 30, 1978, 92 Stat. 834.)
Editorial Notes
Amendments
1978—Subsec. (a). Pub. L. 95–396 extended provisions to Indian tribes, authorized annual appropriation of funds for training and certification programs, and required proportionate reduction of shares in the allocation of available funds when appropriations do not cover 50 percent of the annual costs.
Subsec. (b). Pub. L. 95–396 authorized contracts with Indian tribal agencies.
Subsec. (c). Pub. L. 95–396 substituted "shall" for "may", substituted "use" for "utilize", and "to inform and educate pesticide users about accepted uses and other regulations" for "for informing farmers of accepted uses and other regulations".
Statutory Notes and Related Subsidiaries
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.
Availability of Grants for Pesticide Program Development and Implementation
Pub. L. 105–276, title III, Oct. 21, 1998, 112 Stat. 2499, provided in part: "That beginning in fiscal year 1999 and thereafter, pesticide program implementation grants under section 23(a)(1) of the Federal Insecticide, Fungicide and Rodenticide Act, as amended [7 U.S.C. 136u(a)(1)], shall be available for pesticide program development and implementation, including enforcement and compliance activities".
§136v. Authority of States
(a) In general
A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.
(b) Uniformity
Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.
(c) Additional uses
(1) A State may provide registration for additional uses of federally registered pesticides formulated for distribution and use within that State to meet special local needs in accord with the purposes of this subchapter and if registration for such use has not previously been denied, disapproved, or canceled by the Administrator. Such registration shall be deemed registration under section 136a of this title for all purposes of this subchapter, but shall authorize distribution and use only within such State.
(2) A registration issued by a State under this subsection shall not be effective for more than ninety days if disapproved by the Administrator within that period. Prior to disapproval, the Administrator shall, except as provided in paragraph (3) of this subsection, advise the State of the Administrator's intention to disapprove and the reasons therefor, and provide the State time to respond. The Administrator shall not prohibit or disapprove a registration issued by a State under this subsection (A) on the basis of lack of essentiality of a pesticide or (B) except as provided in paragraph (3) of this subsection, if its composition and use patterns are similar to those of a federally registered pesticide.
(3) In no instance may a State issue a registration for a food or feed use unless there exists a tolerance or exemption under the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 301 et seq.] that permits the residues of the pesticides on the food or feed. If the Administrator determines that a registration issued by a State is inconsistent with the Federal Food, Drug, and Cosmetic Act, or the use of, a pesticide under a registration issued by a State constitutes an imminent hazard, the Administrator may immediately disapprove the registration.
(4) If the Administrator finds, in accordance with standards set forth in regulations issued under section 136w of this title, that a State is not capable of exercising adequate controls to assure that State registration under this section will be in accord with the purposes of this subchapter or has failed to exercise adequate controls, the Administrator may suspend the authority of the State to register pesticides until such time as the Administrator is satisfied that the State can and will exercise adequate controls. Prior to any such suspension, the Administrator shall advise the State of the Administrator's intention to suspend and the reasons therefor and provide the State time to respond.
(June 25, 1947, ch. 125, §24, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 997; amended 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.)
Editorial Notes
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, 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.
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.
§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 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) 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 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). 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.)
Editorial Notes
References in Text
The Poison Prevention Packaging Act, referred to in subsec. (c)(3), probably means the Poison Prevention Packaging Act of 1970, Pub. L. 91–601, Dec. 30, 1970, 84 Stat. 1670, 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. 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".
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).
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.
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.
Information
Pub. L. 117–328, div. HH, title VI, §707, Dec. 29, 2022, 136 Stat. 6082, provided that: "Not later than 180 days after the date of enactment of this title [Dec. 29, 2022], the Administrator of the Environmental Protection Agency shall post on a single webpage of the website of the Environmental Protection Agency aggregated information on pesticide regulation under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.), including—
"(1) all guidance relating to risk assessment, risk mitigation, benefits assessments, and cost-benefit balancing;
"(2) hyperlinks to resources, including the Department of Agriculture's 'national list of allowed and prohibited substances' for organic crop and livestock production;
"(3) biopesticides and pesticides exempt pursuant to section 25(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136w(b)); and
"(4) integrated pest management principles developed under section 28(c) of such Act (7 U.S.C. 136w–3(c)), including technical assistance for implementation of those principles."
Agricultural Worker Protection Standard; Certification of Pesticide Applicators
Pub. L. 116–8, §7(a), (b), Mar. 8, 2019, 133 Stat. 578, provided that:
"(a)
"(1) shall carry out—
"(A) the final rule of the Administrator entitled 'Pesticides; Agricultural Worker Protection Standard Revisions' (80 Fed. Reg. 67496 (November 2, 2015)); and
"(B) the final rule of the Administrator entitled 'Pesticides; Certification of Pesticide Applicators' (82 Fed. Reg. 952 (January 4, 2017)); and
"(2) shall not revise or develop revisions to the rules described in subparagraphs (A) and (B) of paragraph (1).
"(b)
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 do not have primary enforcement responsibility under this subchapter. Notwithstanding the provisions of section 136(e)(1) of this title, during any period when the Administrator has such enforcement responsibility, section 136f(b) of this title shall apply to the books and records of commercial applicators and to any applicator who holds or applies pesticides, or uses dilutions of pesticides, only to provide a service of controlling pests without delivering any unapplied pesticide to any person so served, and section 136g(a) of this title shall apply to the establishment or other place where pesticides or devices are held for application by such persons with respect to pesticides or devices held for such application.
(June 25, 1947, ch. 125, §26, as added Pub. L. 95–396, §24(2), Sept. 30, 1978, 92 Stat. 836; amended Pub. L. 100–532, title VIII, §801(o), (q)(1)(D), Oct. 25, 1988, 102 Stat. 2683; Pub. L. 102–237, title X, §1006(a)(11), Dec. 13, 1991, 105 Stat. 1895.)
Editorial Notes
Prior Provisions
A prior section 26 of act June 25, 1947, ch. 125, was renumbered section 34 and is classified to section 136x of this title.
Amendments
1991—Subsec. (c). Pub. L. 102–237 substituted "uses" for "use".
1988—Subsec. (a). Pub. L. 100–532, §801(o)(1), (2), inserted heading and substituted "regulations. The Administrator" for "regulations; Provided, That the Administrator" in par. (1).
Subsec. (b). Pub. L. 100–532, §801(o)(3), (q)(1)(D), inserted heading and substituted "136i" for "136b" in two places.
Subsec. (c). Pub. L. 100–532, §801(o)(4), inserted heading.
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.
§136w–2. Failure by the State to assure enforcement of State pesticide use regulations
(a) Referral
Upon receipt of any complaint or other information alleging or indicating a significant violation of the pesticide use provisions of this subchapter, the Administrator shall refer the matter to the appropriate State officials for their investigation of the matter consistent with the requirements of this subchapter. If, within thirty days, the State has not commenced appropriate enforcement action, the Administrator may act upon the complaint or information to the extent authorized under this subchapter.
(b) Notice
Whenever the Administrator determines that a State having primary enforcement responsibility for pesticide use violations is not carrying out (or cannot carry out due to the lack of adequate legal authority) such responsibility, the Administrator shall notify the State. Such notice shall specify those aspects of the administration of the State program that are determined to be inadequate. The State shall have ninety days after receipt of the notice to correct any deficiencies. If after that time the Administrator determines that the State program remains inadequate, the Administrator may rescind, in whole or in part, the State's primary enforcement responsibility for pesticide use violations.
(c) Construction
Neither section 136w–1 of this title nor this section shall limit the authority of the Administrator to enforce this subchapter, where the Administrator determines that emergency conditions exist that require immediate action on the part of the Administrator and the State authority is unwilling or unable adequately to respond to the emergency.
(June 25, 1947, ch. 125, §27, as added Pub. L. 95–396, §24(2), Sept. 30, 1978, 92 Stat. 837; amended Pub. L. 100–532, title VIII, §801(p), Oct. 25, 1988, 102 Stat. 2683.)
Editorial Notes
Prior Provisions
A prior section 27 of act June 25, 1947, ch. 125, was renumbered section 35 and is classified to section 136y of this title.
Amendments
1988—Pub. L. 100–532 inserted headings for subsecs. (a) to (c).
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.
§136w–3. Identification of pests; cooperation with Department of Agriculture's program
(a) In general
The Administrator, in coordination with the Secretary of Agriculture, shall identify those pests that must be brought under control. The Administrator shall also coordinate and cooperate with the Secretary of Agriculture's research and implementation programs to develop and improve the safe use and effectiveness of chemical, biological, and alternative methods to combat and control pests that reduce the quality and economical production and distribution of agricultural products to domestic and foreign consumers.
(b) Pest control availability
(1) In general
The Administrator, in cooperation with the Secretary of Agriculture, shall identify—
(A) available methods of pest control by crop or animal;
(B) minor pest control problems, both in minor crops and minor or localized problems in major crops; and
(C) factors limiting the availability of specific pest control methods, such as resistance to control methods and regulatory actions limiting the availability of control methods.
(2) Report
The Secretary of Agriculture shall, not later than 180 days after November 28, 1990, and annually thereafter, prepare a report and send the report to the Administrator. The report shall—
(A) contain the information described in paragraph (1);
(B) identify the crucial pest control needs where a shortage of control methods is indicated by the information described in paragraph (1); and
(C) describe in detail research and extension efforts designed to address the needs identified in subparagraph (B).
(c) Integrated pest management
The Administrator, in cooperation with the Secretary of Agriculture, shall develop approaches to the control of pests based on integrated pest management that respond to the needs of producers, with a special emphasis on minor pests.
(d) Public health pests
The Administrator, in coordination with the Secretary of Agriculture and the Secretary of Health and Human Services, shall identify pests of significant public health importance and, in coordination with the Public Health Service, develop and implement programs to improve and facilitate the safe and necessary use of chemical, biological, and other methods to combat and control such pests of public health importance.
(June 25, 1947, ch. 125, §28, as added Pub. L. 95–396, §24(2), Sept. 30, 1978, 92 Stat. 838; amended Pub. L. 101–624, title XIV, §1495, Nov. 28, 1990, 104 Stat. 3629; Pub. L. 104–127, title VIII, §862(b)(1), Apr. 4, 1996, 110 Stat. 1174; Pub. L. 104–170, title II, §236, Aug. 3, 1996, 110 Stat. 1509.)
Editorial Notes
Amendments
1996—Subsec. (b)(2)(A). Pub. L. 104–127 struck out "and the information required by section 5882 of this title" after "paragraph (1)".
Subsec. (d). Pub. L. 104–170 added subsec. (d).
1990—Pub. L. 101–624 designated existing provisions as subsec. (a) and added subsecs. (b) and (c).
§136w–4. Omitted
Editorial Notes
Codification
Section, act June 25, 1947, ch. 125, §29, as added Pub. L. 95–396, §24(2), Sept. 30, 1978, 92 Stat. 838, which required the Administrator of the Environmental Protection Agency to submit an annual report to Congress relating to applications filed for conditional registration under section 136a(c)(7)(B), (C) of this title, terminated, effective May 15, 2000, pursuant to section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance. See, also, page 164 of House Document No. 103–7.
§136w–5. Minimum requirements for training of maintenance applicators and service technicians
Each State may establish minimum requirements for training of maintenance applicators and service technicians. Such training may include instruction in the safe and effective handling and use of pesticides in accordance with the Environmental Protection Agency approved labeling, and instruction in integrated pest management techniques. The authority of the Administrator with respect to minimum requirements for training of maintenance applicators and service technicians shall be limited to ensuring that each State understands the provisions of this section.
(June 25, 1947, ch. 125, §30, as added Pub. L. 104–170, title I, §121(2), Aug. 3, 1996, 110 Stat. 1492.)
Editorial Notes
Prior Provisions
A prior section 30 of act June 25, 1947, ch. 125, was renumbered section 34 and is classified to section 136x of this title.
§136w–6. Environmental Protection Agency minor use program
(a) The Administrator shall assure coordination of minor use issues through the establishment of a minor use program within the Office of Pesticide Programs. Such office shall be responsible for coordinating the development of minor use programs and policies and consulting with growers regarding minor use issues and registrations and amendments which are submitted to the Environmental Protection Agency.
(b) The Office of Pesticide Programs shall prepare a public report concerning the progress made on the registration of minor uses, including implementation of the exclusive use as an incentive for registering new minor uses, within 3 years of the passage of the Food Quality Protection Act of 1996.
(June 25, 1947, ch. 125, §31, as added Pub. L. 104–170, title II, §210(i), Aug. 3, 1996, 110 Stat. 1500.)
Editorial Notes
References in Text
The passage of the Food Quality Protection Act of 1996, referred to in subsec. (b), probably means the date of enactment of Pub. L. 104–170, which was approved Aug. 3, 1996.
Prior Provisions
A prior section 31 of act June 25, 1947, ch. 125, was renumbered section 35 and is classified to section 136y of this title.
§136w–7. Department of Agriculture minor use program
(a) In general
The Secretary of Agriculture (hereinafter in this section referred to as the "Secretary") shall assure the coordination of the responsibilities of the Department of Agriculture related to minor uses of pesticides, including—
(1) carrying out the Inter-Regional Project Number 4 (IR–4) as described in section 2 of Public Law 89–106 (7 U.S.C. 450i(e)) 1 and the national pesticide resistance monitoring program established under section 1651 1 of the Food, Agriculture, Conservation, and Trade Act of 1990 (7 U.S.C. 5882);
(2) supporting integrated pest management research;
(3) consulting with growers to develop data for minor uses; and
(4) providing assistance for minor use registrations, tolerances, and reregistrations with the Environmental Protection Agency.
(b) Minor use pesticide data and revolving fund
(1) Minor use pesticide data
(A) Grant authority
The Secretary, in consultation with the Administrator, shall establish a program to make grants for the development of data to support minor use pesticide registrations and reregistrations. The amount of any such grant shall not exceed ½ of the cost of the project for which the grant is made.
(B) Applicants
Any person who wants to develop data to support minor use pesticide registrations and reregistrations may apply for a grant under subparagraph (A). Priority shall be given to an applicant for such a grant who does not directly receive funds from the sale of pesticides registered for minor uses.
(C) Data ownership
Any data that is developed under a grant under subparagraph (A) shall be jointly owned by the Department of Agriculture and the person who received the grant. Such a person shall enter into an agreement with the Secretary under which such person shall share any fee paid to such person under section 136a(c)(1)(F) of this title.
(2) Minor Use Pesticide Data Revolving Fund
(A) Establishment
There is established in the Treasury of the United States a revolving fund to be known as the Minor Use Pesticide Data Revolving Fund. The Fund shall be available without fiscal year limitation to carry out the authorized purposes of this subsection.
(B) Contents of the Fund
There shall be deposited in the Fund—
(i) such amounts as may be appropriated to support the purposes of this subsection; and
(ii) fees collected by the Secretary for any data developed under a grant under paragraph (1)(A).
(C) Authorizations of appropriations
There are authorized to be appropriated for each fiscal year to carry out the purposes of this subsection $10,000,000 to remain available until expended.
(June 25, 1947, ch. 125, §32, as added Pub. L. 104–170, title II, §210(j), Aug. 3, 1996, 110 Stat. 1501.)
Editorial Notes
References in Text
Section 2 of Public Law 89–106, referred to in subsec. (a)(1), was formerly classified to secton 450i of this title prior to editorial reclassification and renumbering as section 3157 of this title.
Section 1651 of the Food, Agriculture, Conservation, and Trade Act of 1990, referred to in subsec. (a)(1), was classified to section 5882 of this title prior to repeal by Pub. L. 104–127, title VIII, §862(a), Apr. 4, 1996, 110 Stat. 1174.
1 See References in Text note below.
§136w–8. Pesticide registration service fees
(a) Definition of costs
In this section, the term "costs", when used with respect to review and decisionmaking pertaining to an application for which registration service fees are paid under this section, means—
(1) costs to the extent that—
(A) officers and employees provide direct support for the review and decisionmaking for covered pesticide applications, associated tolerances, and corresponding risk and benefits information and analyses;
(B) persons and organizations under contract with the Administrator engage in the review of the applications, and corresponding risk and benefits information and assessments; and
(C) advisory committees and other accredited persons or organizations, on the request of the Administrator, engage in the peer review of risk or benefits information associated with covered pesticide applications;
(2) costs of management of information, and the acquisition, maintenance, and repair of computer and telecommunication resources (including software), used to support review of pesticide applications, associated tolerances, and corresponding risk and benefits information and analyses; and
(3) costs of collecting registration service fees under subsections (b) and (c) and reporting, auditing, and accounting under this section.
(b) Fees
(1) In general
Effective beginning on the effective date of the Pesticide Registration Improvement Act of 2003, the Administrator shall assess and collect covered pesticide registration service fees in accordance with this section.
(2) Covered applications
(A) In general
An application for the registration of a pesticide covered by this subchapter that is received by the Administrator on or after the effective date of the Pesticide Registration Improvement Act of 2003 or for any other action covered by a table specified in paragraph (3)(B) shall be subject to a registration service fee under this section.
(B) Existing applications
(i) In general
Subject to clause (ii), an application for the registration of a pesticide that was submitted to the Administrator before the effective date of the Pesticide Registration Improvement Act of 2003 and is pending on that effective date shall be subject to a service fee under this section if the application is for the registration of a new active ingredient that is not listed in the Registration Division 2003 Work Plan of the Office of Pesticide Programs of the Environmental Protection Agency.
(ii) Tolerance or exemption fees
The amount of any fee otherwise payable for an application described in clause (i) under this section shall be reduced by the amount of any fees paid to support the related petition for a pesticide tolerance or exemption under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.).
(C) Documentation
An application subject to a registration service fee under this section shall be submitted with documentation certifying—
(i) payment of the registration service fee; or
(ii) payment of at least 25 percent of the registration service fee and a request for a waiver from or reduction of the remaining amount of the registration service fee.
(D) Payment
The registration service fee required under this subsection shall be due upon submission of the application.
(E) Applications subject to additional fees
An application may be subject to additional fees if—
(i) the applicant identified the incorrect registration service fee and decision review period;
(ii) after review of a waiver request, the Administrator denies the waiver request; or
(iii) on completion of, where appropriate, the initial screening of the contents of the application or the preliminary technical screening of the application, the Administrator determines that a different registration service fee and decision review period apply to the application.
(F) Effect of failure to pay fees
The Administrator shall reject any application submitted without the required registration service fee.
(G) Non-refundable portion of fees
(i) In general
The Administrator shall retain 25 percent of the applicable registration service fee.
(ii) Limitation
Any waiver, refund, credit or other reduction in the registration service fee shall not exceed 75 percent of the registration service fee.
(H) Collection of unpaid fees
In any case in which the Administrator does not receive payment of a registration service fee (or applicable portion of the registration service fee) by the date that is 30 days after the fee is due, the fee shall be treated as a claim of the United States Government subject to subchapter II of chapter 37 of title 31.
(3) Schedule of covered applications and other actions and their registration service fees
(A) Data evaluation records
At the decision review time under a fee table specified in subparagraph (B) or as agreed upon under subsection (f)(5), for each covered application under a fee table specified in such subparagraph (B), the Administrator shall—
(i) complete data evaluation records for studies submitted by the applicant in support of the application; and
(ii) release those data evaluation records to the applicant, using appropriate protections for confidential business information.
(B) Schedule, actions, and fees
Subject to paragraph (6), the schedule of registration applications and other covered actions and their corresponding registration service fees shall be as follows:
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(2) All requests for new uses (food and/or nonfood) contained in any application for a new active ingredient or a first food use are covered by the base fee for that new active ingredient or first food use application and retain the same decision time review period as the new active ingredient or first food use application. The application must be received by the Agency in one package. The base fee for the category covers a maximum of five new products. Each application for an additional new product registration and new inert approval that is submitted in the new active ingredient application package or first food use application package is subject to the registration service fee for a new product or a new inert approval. All such associated applications that are submitted together will be subject to the new active ingredient or first food use decision review time. In the case of a new active ingredient application, until that new active ingredient is approved, any subsequent application for another new product containing the same active ingredient or an amendment to the proposed labeling will be deemed a new active ingredient application, subject to the registration service fee and decision review time for a new active ingredient. In the case of a first food use application, until that first food use is approved, any subsequent application for an additional new food use or uses will be subject to the registration service fee and decision review time for a first food use. Any information that (a) was neither requested nor required by the Agency, and (b) is submitted by the applicant at the applicant's initiative to support the application after completion of the preliminary technical screening, and (c) is not itself a covered registration application, must be assessed 25% of the full registration service fee for the new active ingredient or first food use application.
(3) Where the action involves approval of a new or amended label, on or before the end date of the decision review time, the Agency shall provide to the applicant a draft accepted label, including any changes made by the Agency that differ from the applicant-submitted label and relevant supporting data reviewed by the Agency. The applicant will notify the Agency that the applicant either (a) agrees to all of the terms associated with the draft accepted label as amended by the Agency and requests that it be issued as the accepted final Agency-stamped label; or (b) does not agree to one or more of the terms of the draft accepted label as amended by the Agency and requests additional time to resolve the difference(s); or (c) withdraws the application without prejudice for subsequent resubmission, but forfeits the associated registration service fee. For cases described in (b), the applicant shall have up to 30 calendar days to reach agreement with the Agency on the final terms of the Agency-accepted label. If the applicant agrees to all of the terms of the accepted label as in (a), including upon resolution of differences in (b), the Agency shall provide an accepted final Agency-stamped label to the registrant within 2 business days following the registrant's written or electronic confirmation of agreement to the Agency.
(4) If the Administrator determines that endangered species analysis is required for this action, using guidance finalized according to section 33(c)(3)(B) for this specific type of action, the decision review time can be extended for endangered species assessment one time only for up to 50%, upon written notification to the applicant, prior to completion of the technical screening. To the extent practicable, any reason for renegotiation should be resolved during the same extension.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(2) All requests for new uses (food and/or nonfood) contained in any application for a new active ingredient or a first food use are covered by the base fee for that new active ingredient or first food use application and retain the same decision time review period as the new active ingredient or first food use application. The application must be received by the Agency in one package. The base fee for the category covers a maximum of five new products. Each application for an additional new product registration and new inert approval that is submitted in the new active ingredient application package or first food use application package is subject to the registration service fee for a new product or a new inert approval. All such associated applications that are submitted together will be subject to the new active ingredient or first food use decision review time. In the case of a new active ingredient application, until that new active ingredient is approved, any subsequent application for another new product containing the same active ingredient or an amendment to the proposed labeling will be deemed a new active ingredient application, subject to the registration service fee and decision review time for a new active ingredient. In the case of a first food use application, until that first food use is approved, any subsequent application for an additional new food use or uses will be subject to the registration service fee and decision review time for a first food use. Any information that (a) was neither requested nor required by the Agency, and (b) is submitted by the applicant at the applicant's initiative to support the application after completion of the preliminary technical screening, and (c) is not itself a covered registration application, must be assessed 25% of the full registration service fee for the new active ingredient or first food use application.
(3) Where the action involves approval of a new or amended label, on or before the end date of the decision review time, the Agency shall provide to the applicant a draft accepted label, including any changes made by the Agency that differ from the applicant-submitted label and relevant supporting data reviewed by the Agency. The applicant will notify the Agency that the applicant either (a) agrees to all of the terms associated with the draft accepted label as amended by the Agency and requests that it be issued as the accepted final Agency-stamped label; or (b) does not agree to one or more of the terms of the draft accepted label as amended by the Agency and requests additional time to resolve the difference(s); or (c) withdraws the application without prejudice for subsequent resubmission, but forfeits the associated registration service fee. For cases described in (b), the applicant shall have up to 30 calendar days to reach agreement with the Agency on the final terms of the Agency-accepted label. If the applicant agrees to all of the terms of the accepted label as in (a), including upon resolution of differences in (b), the Agency shall provide an accepted final Agency-stamped label to the registrant within 2 business days following the registrant's written or electronic confirmation of agreement to the Agency.
(4) Amendment applications to add the new use(s) to registered product labels are covered by the base fee for the new use(s). All items in the covered application must be submitted together in one package. Each application for an additional new product registration and new inert approval(s) that is submitted in the new use application package is subject to the registration service fee for a new product or a new inert approval. However, if a new use application only proposes to register the new use for a new product and there are no amendments in the application, then review of one new product application is covered by the new use fee. All such associated applications that are submitted together will be subject to the new use decision review time. Any application for a new product or an amendment to the proposed labeling (a) submitted subsequent to submission of the new use application and (b) prior to conclusion of its decision review time and (c) containing the same new uses, will be deemed a separate new-use application, subject to a separate registration service fee and new decision review time for a new use. If the new-use application includes non-food (indoor and/or outdoor), and food (outdoor and/or indoor) uses, the appropriate fee is due for each type of new use and the longest decision review time applies to all of the new uses requested in the application. Any information that (a) was neither requested nor required by the Agency, and (b) is submitted by the applicant at the applicant's initiative to support the application after completion of the preliminary technical screening, and (c) is not itself a covered registration application, must be assessed 25% of the full registration service fee for the new use application.
(5) If the Administrator determines that endangered species analysis is required for this action, using guidance finalized according to section 33(c)(3)(B) for this specific type of action, the decision review time can be extended for endangered species assessment one time only for up to 50%, upon written notification to the applicant, prior to completion of the technical screening. To the extent practicable, any reason for renegotiation should be resolved during the same extension.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(2) All requests for new uses (food and/or nonfood) contained in any application for a new active ingredient or a first food use are covered by the base fee for that new active ingredient or first food use application and retain the same decision time review period as the new active ingredient or first food use application. The application must be received by the Agency in one package. The base fee for the category covers a maximum of five new products. Each application for an additional new product registration and new inert approval that is submitted in the new active ingredient application package or first food use application package is subject to the registration service fee for a new product or a new inert approval. All such associated applications that are submitted together will be subject to the new active ingredient or first food use decision review time. In the case of a new active ingredient application, until that new active ingredient is approved, any subsequent application for another new product containing the same active ingredient or an amendment to the proposed labeling will be deemed a new active ingredient application, subject to the registration service fee and decision review time for a new active ingredient. In the case of a first food use application, until that first food use is approved, any subsequent application for an additional new food use or uses will be subject to the registration service fee and decision review time for a first food use. Any information that (a) was neither requested nor required by the Agency, and (b) is submitted by the applicant at the applicant's initiative to support the application after completion of the preliminary technical screening, and (c) is not itself a covered registration application, must be assessed 25% of the full registration service fee for the new active ingredient or first food use application.
(3) Where the action involves approval of a new or amended label, on or before the end date of the decision review time, the Agency shall provide to the applicant a draft accepted label, including any changes made by the Agency that differ from the applicant-submitted label and relevant supporting data reviewed by the Agency. The applicant will notify the Agency that the applicant either (a) agrees to all of the terms associated with the draft accepted label as amended by the Agency and requests that it be issued as the accepted final Agency-stamped label; or (b) does not agree to one or more of the terms of the draft accepted label as amended by the Agency and requests additional time to resolve the difference(s); or (c) withdraws the application without prejudice for subsequent resubmission, but forfeits the associated registration service fee. For cases described in (b), the applicant shall have up to 30 calendar days to reach agreement with the Agency on the final terms of the Agency-accepted label. If the applicant agrees to all of the terms of the accepted label as in (a), including upon resolution of differences in (b), the Agency shall provide an accepted final Agency-stamped label to the registrant within 2 business days following the registrant's written or electronic confirmation of agreement to the Agency.
(4) Amendment applications to add the revised use pattern(s) to registered product labels are covered by the base fee for the category. All items in the covered application must be submitted together in one package. Each application for an additional new product registration and new inert approval(s) that is submitted in the amendment application package is subject to the registration service fee for a new product or a new inert approval. However, if an amendment application only proposes to register the amendment for a new product and there are no amendments in the application, then review of one new product application is covered by the base fee. All such associated applications that are submitted together will be subject to the category decision review time.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(2) An application for a new end-use product using a source of active ingredient that (a) is not yet registered but (b) has an application pending with the Agency for review, will be considered an application for a new product with an unregistered source of active ingredient.
(3) Where the action involves approval of a new or amended label, on or before the end date of the decision review time, the Agency shall provide to the applicant a draft accepted label, including any changes made by the Agency that differ from the applicant-submitted label and relevant supporting data reviewed by the Agency. The applicant will notify the Agency that the applicant either (a) agrees to all of the terms associated with the draft accepted label as amended by the Agency and requests that it be issued as the accepted final Agency-stamped label; or (b) does not agree to one or more of the terms of the draft accepted label as amended by the Agency and requests additional time to resolve the difference(s); or (c) withdraws the application without prejudice for subsequent resubmission, but forfeits the associated registration service fee. For cases described in (b), the applicant shall have up to 30 calendar days to reach agreement with the Agency on the final terms of the Agency-accepted label. If the applicant agrees to all of the terms of the accepted label as in (a), including upon resolution of differences in (b), the Agency shall provide an accepted final Agency-stamped label to the registrant within 2 business days following the registrant's written or electronic confirmation of agreement to the Agency.
(4) For the purposes of classifying proposed registration actions into PRIA categories, "pest(s) requiring efficacy" are both invertebrate and vertebrate pests. Invertebrate public health pests (e.g., ticks, mosquitoes, cockroaches, flies, etc.), structural pests (e.g., termites, carpenter ants, and wood-boring beetles) and certain invasive invertebrate species (e.g., Asian Longhorned beetle, Emerald Ashborer) are listed in the product performance rule, subpart R of part 158 of title 40, Code of Federal Regulations. This list may be updated/refined as invasive pest needs arise. All other pests (e.g., vertebrates) are listed in the Pesticide Registration Notice 2002-1. To determine the number of pests for the PRIA categories, pest groups, subgroups, and pest specific claims as listed in part 158 of title 40, Code of Federal Regulations, should be counted as follows. If seeking a label claim against a general pest group (e.g., cockroaches, mosquitoes, termites, etc.), each group will count as 1. If seeking a claim against a pest subgroup (e.g., small biting flies, filth flies, etc.) or specific pests (e.g., smokybrown cockroach, house fly, etc.) without a general claim, then each subgroup or specific pest will count as 1.
(5) If the Administrator determines that endangered species analysis is required for this action, using guidance finalized according to section 33(c)(3)(B) for this specific type of action, the decision review time can be extended for endangered species assessment one time only for up to 50%, upon written notification to the applicant, prior to completion of the technical screening. To the extent practicable, any reason for renegotiation should be resolved during the same extension.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(2) (a) EPA-initiated amendments shall not be charged registration service fees. (b) Registrant-initiated fast-track amendments are to be completed within the timelines specified in section 3(c)(3)(B) and are not subject to registration service fees. (c) Registrant-initiated fast-track amendments handled by the Antimicrobials Division are to be completed within the timelines specified in section 3(h) and are not subject to registration service fees. (d) Registrant initiated amendments submitted by notification under PR Notices, such as PR Notice 98–10, continue under PR Notice timelines and are not subject to registration service fees. (e) Submissions with data and requiring data review are subject to registration service fees.
(3) Where the action involves approval of a new or amended label, on or before the end date of the decision review time, the Agency shall provide to the applicant a draft accepted label, including any changes made by the Agency that differ from the applicant-submitted label and relevant supporting data reviewed by the Agency. The applicant will notify the Agency that the applicant either (a) agrees to all of the terms associated with the draft accepted label as amended by the Agency and requests that it be issued as the accepted final Agency-stamped label; or (b) does not agree to one or more of the terms of the draft accepted label as amended by the Agency and requests additional time to resolve the difference(s); or (c) withdraws the application without prejudice for subsequent resubmission, but forfeits the associated registration service fee. For cases described in (b), the applicant shall have up to 30 calendar days to reach agreement with the Agency on the final terms of the Agency-accepted label. If the applicant agrees to all of the terms of the accepted label as in (a), including upon resolution of differences in (b), the Agency shall provide an accepted final Agency-stamped label to the registrant within 2 business days following the registrant's written or electronic confirmation of agreement to the Agency.
(4) For the purposes of classifying proposed registration actions into PRIA categories, "pest(s) requiring efficacy" are both invertebrate and vertebrate pests. Invertebrate public health pests (e.g., ticks, mosquitoes, cockroaches, flies, etc.), structural pests (e.g., termites, carpenter ants, and wood-boring beetles) and certain invasive invertebrate species (e.g., Asian Longhorned beetle, Emerald Ashborer) are listed in the product performance rule, subpart R of part 158 of title 40, Code of Federal Regulations. This list may be updated/refined as invasive pest needs arise. All other pests (e.g., vertebrates) are listed in the Pesticide Registration Notice 2002-1. To determine the number of pests for the PRIA categories, pest groups, subgroups, and pest specific claims as listed in part 158 of title 40, Code of Federal Regulations, should be counted as follows. If seeking a label claim against a general pest group (e.g., cockroaches, mosquitoes, termites, etc.), each group will count as 1. If seeking a claim against a pest subgroup (e.g., small biting flies, filth flies, etc.) or specific pests (e.g., smokybrown cockroach, house fly, etc.) without a general claim, then each subgroup or specific pest will count as 1.
(5) If the Administrator determines that endangered species analysis is required for this action, using guidance finalized according to section 33(c)(3)(B) for this specific type of action, the decision review time can be extended for endangered species assessment one time only for up to 50%, upon written notification to the applicant, prior to completion of the technical screening. To the extent practicable, any reason for renegotiation should be resolved during the same extension.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(2) All requests for new uses (food and/or nonfood) contained in any application for a new active ingredient or a first food use are covered by the base fee for that new active ingredient or first food use application and retain the same decision time review period as the new active ingredient or first food use application. The application must be received by the Agency in one package. The base fee for the category covers a maximum of five new products. Each application for an additional new product registration and new inert approval that is submitted in the new active ingredient application package or first food use application package is subject to the registration service fee for a new product or a new inert approval. All such associated applications that are submitted together will be subject to the new active ingredient or first food use decision review time. In the case of a new active ingredient application, until that new active ingredient is approved, any subsequent application for another new product containing the same active ingredient or an amendment to the proposed labeling will be deemed a new active ingredient application, subject to the registration service fee and decision review time for a new active ingredient. In the case of a first food use application, until that first food use is approved, any subsequent application for an additional new food use or uses will be subject to the registration service fee and decision review time for a first food use. Any information that (a) was neither requested nor required by the Agency, and (b) is submitted by the applicant at the applicant's initiative to support the application after completion of the preliminary technical screening, and (c) is not itself a covered registration application, must be assessed 25% of the full registration service fee for the new active ingredient or first food use application.
(3) Where the action involves approval of a new or amended label, on or before the end date of the decision review time, the Agency shall provide to the applicant a draft accepted label, including any changes made by the Agency that differ from the applicant-submitted label and relevant supporting data reviewed by the Agency. The applicant will notify the Agency that the applicant either (a) agrees to all of the terms associated with the draft accepted label as amended by the Agency and requests that it be issued as the accepted final Agency-stamped label; or (b) does not agree to one or more of the terms of the draft accepted label as amended by the Agency and requests additional time to resolve the difference(s); or (c) withdraws the application without prejudice for subsequent resubmission, but forfeits the associated registration service fee. For cases described in (b), the applicant shall have up to 30 calendar days to reach agreement with the Agency on the final terms of the Agency-accepted label. If the applicant agrees to all of the terms of the accepted label as in (a), including upon resolution of differences in (b), the Agency shall provide an accepted final Agency-stamped label to the registrant within 2 business days following the registrant's written or electronic confirmation of agreement to the Agency.
(4) If the Administrator determines that endangered species analysis is required for this action, using guidance finalized according to section 33(c)(3)(B) for this specific type of action, the decision review time can be extended for endangered species assessment one time only for up to 50%, upon written notification to the applicant, prior to completion of the technical screening. To the extent practicable, any reason for renegotiation should be resolved during the same extension.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(2) All requests for new uses (food and/or nonfood) contained in any application for a new active ingredient or a first food use are covered by the base fee for that new active ingredient or first food use application and retain the same decision time review period as the new active ingredient or first food use application. The application must be received by the Agency in one package. The base fee for the category covers a maximum of five new products. Each application for an additional new product registration and new inert approval that is submitted in the new active ingredient application package or first food use application package is subject to the registration service fee for a new product or a new inert approval. All such associated applications that are submitted together will be subject to the new active ingredient or first food use decision review time. In the case of a new active ingredient application, until that new active ingredient is approved, any subsequent application for another new product containing the same active ingredient or an amendment to the proposed labeling will be deemed a new active ingredient application, subject to the registration service fee and decision review time for a new active ingredient. In the case of a first food use application, until that first food use is approved, any subsequent application for an additional new food use or uses will be subject to the registration service fee and decision review time for a first food use. Any information that (a) was neither requested nor required by the Agency, and (b) is submitted by the applicant at the applicant's initiative to support the application after completion of the preliminary technical screening, and (c) is not itself a covered registration application, must be assessed 25% of the full registration service fee for the new active ingredient or first food use application.
(3) If EPA data rules are amended to newly require clearance under section 408 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 346a) for an ingredient of an antimicrobial product where such ingredient was not previously subject to such a clearance, then review of the data for such clearance of such product is not subject to a registration service fee for the tolerance action for two years from the effective date of the rule.
(4) Where the action involves approval of a new or amended label, on or before the end date of the decision review time, the Agency shall provide to the applicant a draft accepted label, including any changes made by the Agency that differ from the applicant-submitted label and relevant supporting data reviewed by the Agency. The applicant will notify the Agency that the applicant either (a) agrees to all of the terms associated with the draft accepted label as amended by the Agency and requests that it be issued as the accepted final Agency-stamped label; or (b) does not agree to one or more of the terms of the draft accepted label as amended by the Agency and requests additional time to resolve the difference(s); or (c) withdraws the application without prejudice for subsequent resubmission, but forfeits the associated registration service fee. For cases described in (b), the applicant shall have up to 30 calendar days to reach agreement with the Agency on the final terms of the Agency-accepted label. If the applicant agrees to all of the terms of the accepted label as in (a), including upon resolution of differences in (b), the Agency shall provide an accepted final Agency-stamped label to the registrant within 2 business days following the registrant's written or electronic confirmation of agreement to the Agency.
(5) Amendment applications to add the new use(s) to registered product labels are covered by the base fee for the new use(s). All items in the covered application must be submitted together in one package. Each application for an additional new product registration and new inert approval(s) that is submitted in the new use application package is subject to the registration service fee for a new product or a new inert approval. However, if a new use application only proposes to register the new use for a new product and there are no amendments in the application, then review of one new product application is covered by the new use fee. All such associated applications that are submitted together will be subject to the new use decision review time. Any application for a new product or an amendment to the proposed labeling (a) submitted subsequent to submission of the new use application and (b) prior to conclusion of its decision review time and (c) containing the same new uses, will be deemed a separate new-use application, subject to a separate registration service fee and new decision review time for a new use. If the new-use application includes non-food (indoor and/or outdoor), and food (outdoor and/or indoor) uses, the appropriate fee is due for each type of new use and the longest decision review time applies to all of the new uses requested in the application. Any information that (a) was neither requested nor required by the Agency, and (b) is submitted by the applicant at the applicant's initiative to support the application after completion of the preliminary technical screening, and (c) is not itself a covered registration application, must be assessed 25% of the full registration service fee for the new use application.
(6) If the Administrator determines that endangered species analysis is required for this action, using guidance finalized according to section 33(c)(3)(B) for this specific type of action, the decision review time can be extended for endangered species assessment one time only for up to 50%, upon written notification to the applicant, prior to completion of the technical screening. To the extent practicable, any reason for renegotiation should be resolved during the same extension.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(2) An application for a new end-use product using a source of active ingredient that (a) is not yet registered but (b) has an application pending with the Agency for review, will be considered an application for a new product with an unregistered source of active ingredient.
(3) Where the action involves approval of a new or amended label, on or before the end date of the decision review time, the Agency shall provide to the applicant a draft accepted label, including any changes made by the Agency that differ from the applicant-submitted label and relevant supporting data reviewed by the Agency. The applicant will notify the Agency that the applicant either (a) agrees to all of the terms associated with the draft accepted label as amended by the Agency and requests that it be issued as the accepted final Agency-stamped label; or (b) does not agree to one or more of the terms of the draft accepted label as amended by the Agency and requests additional time to resolve the difference(s); or (c) withdraws the application without prejudice for subsequent resubmission, but forfeits the associated registration service fee. For cases described in (b), the applicant shall have up to 30 calendar days to reach agreement with the Agency on the final terms of the Agency-accepted label. If the applicant agrees to all of the terms of the accepted label as in (a), including upon resolution of differences in (b), the Agency shall provide an accepted final Agency-stamped label to the registrant within 2 business days following the registrant's written or electronic confirmation of agreement to the Agency.
(4) (a) EPA-initiated amendments shall not be charged registration service fees. (b) Registrant-initiated fast-track amendments are to be completed within the timelines specified in section 3(c)(3)(B) and are not subject to registration service fees. (c) Registrant-initiated fast-track amendments handled by the Antimicrobials Division are to be completed within the timelines specified in section 3(h) and are not subject to registration service fees. (d) Registrant initiated amendments submitted by notification under Pesticide Registration (PR) Notices, such as PR Notice 98–10, continue under PR Notice timelines and are not subject to registration service fees. (e) Submissions with data and requiring data review are subject to registration service fees.
(5) The applicant must identify the substantially similar product if opting to use cite-all or the selective method to support acute toxicity data requirements.
(6) Once an application for an amendment or a new product with public health organisms has been submitted and classified into any of categories A460 through A465 or A470 through A475, additional organisms submitted for the same product before the first application is granted will result in combination and reclassification of both the original and subsequent submissions into the appropriate new category based on the sum of the number of organisms in both submissions. Submission of additional organisms would result in a new PRIA start date and may require additional fees to meet the fee of a new category.
(7) If the Administrator determines that endangered species analysis is required for this action, using guidance finalized according to section 33(c)(3)(B) for this specific type of action, the decision review time can be extended for endangered species assessment one time only for up to 50%, upon written notification to the applicant, prior to completion of the technical screening. To the extent practicable, any reason for renegotiation should be resolved during the same extension.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(2) Where the action involves approval of a new or amended label, on or before the end date of the decision review time, the Agency shall provide to the applicant a draft accepted label, including any changes made by the Agency that differ from the applicant-submitted label and relevant supporting data reviewed by the Agency. The applicant will notify the Agency that the applicant either (a) agrees to all of the terms associated with the draft accepted label as amended by the Agency and requests that it be issued as the accepted final Agency-stamped label; or (b) does not agree to one or more of the terms of the draft accepted label as amended by the Agency and requests additional time to resolve the difference(s); or (c) withdraws the application without prejudice for subsequent resubmission, but forfeits the associated registration service fee. For cases described in (b), the applicant shall have up to 30 calendar days to reach agreement with the Agency on the final terms of the Agency-accepted label. If the applicant agrees to all of the terms of the accepted label as in (a), including upon resolution of differences in (b), the Agency shall provide an accepted final Agency-stamped label to the registrant within 2 business days following the registrant's written or electronic confirmation of agreement to the Agency.
3) If the Administrator determines that endangered species analysis is required for this action, using guidance finalized according to section 33(c)(3)(B) for this specific type of action, the decision review time can be extended for endangered species assessment one time only for up to 50%, upon written notification to the applicant, prior to completion of the technical screening. To the extent practicable, any reason for renegotiation should be resolved during the same extension.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(2) All requests for new uses (food and/or nonfood) contained in any application for a new active ingredient or a first food use are covered by the base fee for that new active ingredient or first food use application and retain the same decision time review period as the new active ingredient or first food use application. The application must be received by the Agency in one package. The base fee for the category covers a maximum of five new products. Each application for an additional new product registration and new inert approval that is submitted in the new active ingredient application package or first food use application package is subject to the registration service fee for a new product or a new inert approval. All such associated applications that are submitted together will be subject to the new active ingredient or first food use decision review time. In the case of a new active ingredient application, until that new active ingredient is approved, any subsequent application for another new product containing the same active ingredient or an amendment to the proposed labeling will be deemed a new active ingredient application, subject to the registration service fee and decision review time for a new active ingredient. In the case of a first food use application, until that first food use is approved, any subsequent application for an additional new food use or uses will be subject to the registration service fee and decision review time for a first food use. Any information that (a) was neither requested nor required by the Agency, and (b) is submitted by the applicant at the applicant's initiative to support the application after completion of the preliminary technical screening, and (c) is not itself a covered registration application, must be assessed 25% of the full registration service fee for the new active ingredient or first food use application.
(3) Where the action involves approval of a new or amended label, on or before the end date of the decision review time, the Agency shall provide to the applicant a draft accepted label, including any changes made by the Agency that differ from the applicant-submitted label and relevant supporting data reviewed by the Agency. The applicant will notify the Agency that the applicant either (a) agrees to all of the terms associated with the draft accepted label as amended by the Agency and requests that it be issued as the accepted final Agency-stamped label; or (b) does not agree to one or more of the terms of the draft accepted label as amended by the Agency and requests additional time to resolve the difference(s); or (c) withdraws the application without prejudice for subsequent resubmission, but forfeits the associated registration service fee. For cases described in (b), the applicant shall have up to 30 calendar days to reach agreement with the Agency on the final terms of the Agency-accepted label. If the applicant agrees to all of the terms of the accepted label as in (a), including upon resolution of differences in (b), the Agency shall provide an accepted final Agency-stamped label to the registrant within 2 business days following the registrant's written or electronic confirmation of agreement to the Agency.
(4) If the Administrator determines that endangered species analysis is required for this action, using guidance finalized according to section 33(c)(3)(B) for this specific type of action, the decision review time can be extended for endangered species assessment one time only for up to 50%, upon written notification to the applicant, prior to completion of the technical screening. To the extent practicable, any reason for renegotiation should be resolved during the same extension.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(2) All requests for new uses (food and/or nonfood) contained in any application for a new active ingredient or a first food use are covered by the base fee for that new active ingredient or first food use application and retain the same decision time review period as the new active ingredient or first food use application. The application must be received by the Agency in one package. The base fee for the category covers a maximum of five new products. Each application for an additional new product registration and new inert approval that is submitted in the new active ingredient application package or first food use application package is subject to the registration service fee for a new product or a new inert approval. All such associated applications that are submitted together will be subject to the new active ingredient or first food use decision review time. In the case of a new active ingredient application, until that new active ingredient is approved, any subsequent application for another new product containing the same active ingredient or an amendment to the proposed labeling will be deemed a new active ingredient application, subject to the registration service fee and decision review time for a new active ingredient. In the case of a first food use application, until that first food use is approved, any subsequent application for an additional new food use or uses will be subject to the registration service fee and decision review time for a first food use. Any information that (a) was neither requested nor required by the Agency, and (b) is submitted by the applicant at the applicant's initiative to support the application after completion of the preliminary technical screening, and (c) is not itself a covered registration application, must be assessed 25% of the full registration service fee for the new active ingredient or first food use application.
(3) Amendment applications to add the new use(s) to registered product labels are covered by the base fee for the new use(s). All items in the covered application must be submitted together in one package. Each application for an additional new product registration and new inert approval(s) that is submitted in the new use application package is subject to the registration service fee for a new product or a new inert approval. However, if a new use application only proposes to register the new use for a new product and there are no amendments in the application, then review of one new product application is covered by the new use fee. All such associated applications that are submitted together will be subject to the new use decision review time. Any application for a new product or an amendment to the proposed labeling (a) submitted subsequent to submission of the new use application and (b) prior to conclusion of its decision review time and (c) containing the same new uses, will be deemed a separate new-use application, subject to a separate registration service fee and new decision review time for a new use. If the new-use application includes non-food (indoor and/or outdoor), and food (outdoor and/or indoor) uses, the appropriate fee is due for each type of new use and the longest decision review time applies to all of the new uses requested in the application. Any information that (a) was neither requested nor required by the Agency, and (b) is submitted by the applicant at the applicant's initiative to support the application after completion of the preliminary technical screen, and (c) is not itself a covered registration application, must be assessed 25% of the full registration service fee for the new use application.
(4) Where the action involves approval of a new or amended label, on or before the end date of the decision review time, the Agency shall provide to the applicant a draft accepted label, including any changes made by the Agency that differ from the applicant-submitted label and relevant supporting data reviewed by the Agency. The applicant will notify the Agency that the applicant either (a) agrees to all of the terms associated with the draft accepted label as amended by the Agency and requests that it be issued as the accepted final Agency-stamped label; or (b) does not agree to one or more of the terms of the draft accepted label as amended by the Agency and requests additional time to resolve the difference(s); or (c) withdraws the application without prejudice for subsequent resubmission, but forfeits the associated registration service fee. For cases described in (b), the applicant shall have up to 30 calendar days to reach agreement with the Agency on the final terms of the Agency-accepted label. If the applicant agrees to all of the terms of the accepted label as in (a), including upon resolution of differences in (b), the Agency shall provide an accepted final Agency-stamped label to the registrant within 2 business days following the registrant's written or electronic confirmation of agreement to the Agency.
(5) If the Administrator determines that endangered species analysis is required for this action, using guidance finalized according to section 33(c)(3)(B) for this specific type of action, the decision review time can be extended for endangered species assessment one time only for up to 50%, upon written notification to the applicant, prior to completion of the technical screening. To the extent practicable, any reason for renegotiation should be resolved during the same extension.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(2) An application for a new end-use product using a source of active ingredient that (a) is not yet registered but (b) has an application pending with the Agency for review, will be considered an application for a new product with an unregistered source of active ingredient.
(3) Where the action involves approval of a new or amended label, on or before the end date of the decision review time, the Agency shall provide to the applicant a draft accepted label, including any changes made by the Agency that differ from the applicant-submitted label and relevant supporting data reviewed by the Agency. The applicant will notify the Agency that the applicant either (a) agrees to all of the terms associated with the draft accepted label as amended by the Agency and requests that it be issued as the accepted final Agency-stamped label; or (b) does not agree to one or more of the terms of the draft accepted label as amended by the Agency and requests additional time to resolve the difference(s); or (c) withdraws the application without prejudice for subsequent resubmission, but forfeits the associated registration service fee. For cases described in (b), the applicant shall have up to 30 calendar days to reach agreement with the Agency on the final terms of the Agency-accepted label. If the applicant agrees to all of the terms of the accepted label as in (a), including upon resolution of differences in (b), the Agency shall provide an accepted final Agency-stamped label to the registrant within 2 business days following the registrant's written or electronic confirmation of agreement to the Agency.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(2) (a) EPA-initiated amendments shall not be charged registration service fees. (b) Registrant-initiated fast-track amendments are to be completed within the timelines specified in section 3(c)(3)(B) and are not subject to registration service fees. (c) Registrant-initiated fast-track amendments handled by the Antimicrobials Division are to be completed within the timelines specified in section 3(h) and are not subject to registration service fees. (d) Registrant initiated amendments submitted by notification under Pesticide Registration (PR) Notices, such as PR Notice 98-10, continue under PR Notice timelines and are not subject to registration service fees. (e) Submissions with data and requiring data review are subject to registration service fees.
(3) Where the action involves approval of a new or amended label, on or before the end date of the decision review time, the Agency shall provide to the applicant a draft accepted label, including any changes made by the Agency that differ from the applicant-submitted label and relevant supporting data reviewed by the Agency. The applicant will notify the Agency that the applicant either (a) agrees to all of the terms associated with the draft accepted label as amended by the Agency and requests that it be issued as the accepted final Agency-stamped label; or (b) does not agree to one or more of the terms of the draft accepted label as amended by the Agency and requests additional time to resolve the difference(s); or (c) withdraws the application without prejudice for subsequent resubmission, but forfeits the associated registration service fee. For cases described in (b), the applicant shall have up to 30 calendar days to reach agreement with the Agency on the final terms of the Agency-accepted label. If the applicant agrees to all of the terms of the accepted label as in (a), including upon resolution of differences in (b), the Agency shall provide an accepted final Agency-stamped label to the registrant within 2 business days following the registrant's written or electronic confirmation of agreement to the Agency.
(4) If the Administrator determines that endangered species analysis is required for this action, using guidance finalized according to section 33(c)(3)(B) for this specific type of action, the decision review time can be extended for endangered species assessment one time only for up to 50%, upon written notification to the applicant, prior to completion of the technical screening. To the extent practicable, any reason for renegotiation should be resolved during the same extension.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(2) All requests for new uses (food and/or nonfood) contained in any application for a new active ingredient or a first food use are covered by the base fee for that new active ingredient or first food use application and retain the same decision time review period as the new active ingredient or first food use application. The application must be received by the Agency in one package. The base fee for the category covers a maximum of five new products. Each application for an additional new product registration and new inert approval that is submitted in the new active ingredient application package or first food use application package is subject to the registration service fee for a new product or a new inert approval. All such associated applications that are submitted together will be subject to the new active ingredient or first food use decision review time. In the case of a new active ingredient application, until that new active ingredient is approved, any subsequent application for another new product containing the same active ingredient or an amendment to the proposed labeling will be deemed a new active ingredient application, subject to the registration service fee and decision review time for a new active ingredient. In the case of a first food use application, until that first food use is approved, any subsequent application for an additional new food use or uses will be subject to the registration service fee and decision review time for a first food use. Any information that (a) was neither requested nor required by the Agency, and (b) is submitted by the applicant at the applicant's initiative to support the application after completion of the preliminary technical screening, and (c) is not itself a covered registration application, must be assessed 25% of the full registration service fee for the new active ingredient or first food use application.
(3) An application for a new end-use product using a source of active ingredient that (a) is not yet registered but (b) has an application pending with the Agency for review, will be considered an application for a new product with an unregistered source of active ingredient.
(4) (a) EPA-initiated amendments shall not be charged registration service fees. (b) Registrant-initiated fast-track amendments are to be completed within the timelines specified in section 3(c)(3)(B) and are not subject to registration service fees. (c) Registrant-initiated fast-track amendments handled by the Antimicrobials Division are to be completed within the timelines specified in section 3(h) and are not subject to registration service fees. (d) Registrant initiated amendments submitted by notification under Pesticide Registration (PR) Notices, such as PR Notice 98-10, continue under PR Notice timelines and are not subject to registration service fees. (e) Submissions with data and requiring data review are subject to registration service fees.
(5) Amendment applications to add the new use(s) to registered product labels are covered by the base fee for the new use(s). All items in the covered application must be submitted together in one package. Each application for an additional new product registration and new inert approval(s) that is submitted in the new use application package is subject to the registration service fee for a new product or a new inert approval. However, if a new use application only proposes to register the new use for a new product and there are no amendments in the application, then review of one new product application is covered by the new use fee. All such associated applications that are submitted together will be subject to the new use decision review time. Any application for a new product or an amendment to the proposed labeling (a) submitted subsequent to submission of the new use application and (b) prior to conclusion of its decision review time and (c) containing the same new uses, will be deemed a separate new-use application, subject to a separate registration service fee and new decision review time for a new use. If the new-use application includes non-food (indoor and/or outdoor), and food (outdoor and/or indoor) uses, the appropriate fee is due for each type of new use and the longest decision review time applies to all of the new uses requested in the application. Any information that (a) was neither requested nor required by the Agency, and (b) is submitted by the applicant at the applicant's initiative to support the application after completion of the preliminary technical screening, and (c) is not itself a covered registration application, must be assessed 25% of the full registration service fee for the new use application.
(6) Where the action involves approval of a new or amended label, on or before the end date of the decision review time, the Agency shall provide to the applicant a draft accepted label, including any changes made by the Agency that differ from the applicant-submitted label and relevant supporting data reviewed by the Agency. The applicant will notify the Agency that the applicant either (a) agrees to all of the terms associated with the draft accepted label as amended by the Agency and requests that it be issued as the accepted final Agency-stamped label; or (b) does not agree to one or more of the terms of the draft accepted label as amended by the Agency and requests additional time to resolve the difference(s); or (c) withdraws the application without prejudice for subsequent resubmission, but forfeits the associated registration service fee. For cases described in (b), the applicant shall have up to 30 calendar days to reach agreement with the Agency on the final terms of the Agency-accepted label. If the applicant agrees to all of the terms of the accepted label as in (a), including upon resolution of differences in (b), the Agency shall provide an accepted final Agency-stamped label to the registrant within 2 business days following the registrant's written or electronic confirmation of agreement to the Agency.
(7) If the Administrator determines that endangered species analysis is required for this action, using guidance finalized according to section 33(c)(3)(B) for this specific type of action, the decision review time can be extended for endangered species assessment one time only for up to 50%, upon written notification to the applicant, prior to completion of the technical screening. To the extent practicable, any reason for renegotiation should be resolved during the same extension.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(2) "New PIP" means a PIP with an active ingredient that has not been registered.
(3) "Registered PIP" means a PIP with an active ingredient that is currently registered.
(4) Transfer registered PIP through conventional breeding for new food/feed use, such as from field corn to sweet corn.
(5) If, during review of the application, it is determined that review by the FIFRA Scientific Advisory Panel (SAP) is needed, the applicant will submit an application for category B905, which will be processed concurrently, and the decision review time for both applications will be the longer of the two associated applications. The scientific data involved in this category are complex. EPA often seeks technical advice from the SAP on risks that pesticides pose to wildlife, farm workers, pesticide applicators, non-target species, insect resistance, and novel scientific issues surrounding new technologies. The scientists of the SAP neither make nor recommend policy decisions. They provide advice on the science used to make these decisions. Their advice is invaluable to the EPA as it strives to protect humans and the environment from risks posed by pesticides. Due to the time it takes to schedule and prepare for meetings with the SAP, additional time and costs are needed.
(6) Registered PIPs stacked through conventional breeding.
(7) Deployment of a registered PIP with a different Insecticide Resistance Management (IRM) plan (e.g., seed blend).
(8) The negotiated acreage cap will depend upon EPA's determination of the potential environmental exposure, risk(s) to non-target organisms, and the risk of targeted pest developing resistance to the pesticidal substance. The uncertainty of these risks may reduce the allowable acreage, based upon the quantity and type of non-target organism data submitted and the lack of insect resistance management data, which is usually not required for seed-increase registrations. Registrants are encouraged to consult with EPA prior to submission of a registration application in this category.
(9) Application can be submitted prior to or concurrently with an application for commercial registration.
(10) For example, IRM plan modifications that are applicant-initiated.
(11) (a) EPA-initiated amendments shall not be charged registration service fees. (b) Registrant-initiated fast-track amendments are to be completed within the timelines specified in section 3(c)(3)(B) and are not subject to registration service fees. (c) Registrant-initiated fast-track amendments handled by the Antimicrobials Division are to be completed within the timelines specified in section 3(h) and are not subject to registration service fees. (d) Registrant initiated amendments submitted by notification under Pesticide Registration (PR) Notices, such as PR Notice 98-10, continue under PR Notice timelines and are not subject to registration service fees. (e) Submissions with data and requiring data review are subject to registration service fees.
(12) Where the action involves approval of a new or amended label, on or before the end date of the decision review time, the Agency shall provide to the applicant a draft accepted label, including any changes made by the Agency that differ from the applicant-submitted label and relevant supporting data reviewed by the Agency. The applicant will notify the Agency that the applicant either (a) agrees to all of the terms associated with the draft accepted label as amended by the Agency and requests that it be issued as the accepted final Agency-stamped label; or (b) does not agree to one or more of the terms of the draft accepted label as amended by the Agency and requests additional time to resolve the difference(s); or (c) withdraws the application without prejudice for subsequent resubmission, but forfeits the associated registration service fee. For cases described in (b), the applicant shall have up to 30 calendar days to reach agreement with the Agency on the final terms of the Agency-accepted label. If the applicant agrees to all of the terms of the accepted label as in (a), including upon resolution of differences in (b), the Agency shall provide an accepted final Agency-stamped label to the registrant within 2 business days following the registrant's written or electronic confirmation of agreement to the Agency.
(13) This category does not include genetic modifications in animals not intended for use as a pesticide, e.g., genetic modifications in animals intended for food use or animals intended for use as companion animals.
(14) If the Administrator determines that endangered species analysis is required for this action, using guidance finalized according to section 33(c)(3)(B) for this specific type of action, the decision review time can be extended for endangered species assessment one time only for up to 50%, upon written notification to the applicant, prior to completion of the technical screening. To the extent practicable, any reason for renegotiation should be resolved during the same extension.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(2) If another covered application is submitted that depends upon an application to approve an inert ingredient, each application will be subject to its respective registration service fee. The decision review time for both submissions will be the longest of the associated applications. If the application covers multiple ingredients grouped by EPA into one chemical class, a single registration service fee will be assessed for approval of those ingredients.
(3) If EPA data rules are amended to newly require clearance under section 408 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 346a) for an ingredient of an antimicrobial product where such ingredient was not previously subject to such a clearance, then review of the data for such clearance of such product is not subject to a registration service fee for the tolerance action for two years from the effective date of the rule.
(4) Due to low fee and short time frame this category is not eligible for small business waivers.
(1) A decision review time that would otherwise end on a Saturday, Sunday, or Federal holiday, will be extended to end on the next business day.
(2) Any other covered application that is associated with and dependent on the review by the Human Studies Review Board will be subject to its separate registration service fee. The decision review times for the associated actions run concurrently, but will end at the date of the latest review time.
(3) Any other covered application that is associated with and dependent on the FIFRA Scientific Advisory Panel review will be subject to its separate registration service fee. The decision review time for the associated action will be extended by the decision review time for the SAP review.
(4) If another covered application is submitted that depends upon an application to approve an inert ingredient, each application will be subject to its respective registration service fee. The decision review time for both submissions will be the longest of the associated applications. If the application covers multiple ingredients grouped by EPA into one chemical class, a single registration service fee will be assessed for approval of those ingredients.
(5) An application for a new end-use product using a source of active ingredient that (a) is not yet registered but (b) has an application pending with the Agency for review, will be considered an application for a new product with an unregistered source of active ingredient.
(6) Where the action involves approval of a new or amended label, on or before the end date of the decision review time, the Agency shall provide to the applicant a draft accepted label, including any changes made by the Agency that differ from the applicant-submitted label and relevant supporting data reviewed by the Agency. The applicant will notify the Agency that the applicant either (a) agrees to all of the terms associated with the draft accepted label as amended by the Agency and requests that it be issued as the accepted final Agency-stamped label; or (b) does not agree to one or more of the terms of the draft accepted label as amended by the Agency and requests additional time to resolve the difference(s); or (c) withdraws the application without prejudice for subsequent resubmission, but forfeits the associated registration service fee. For cases described in (b), the applicant shall have up to 30 calendar days to reach agreement with the Agency on the final terms of the Agency-accepted label. If the applicant agrees to all of the terms of the accepted label as in (a), including upon resolution of differences in (b), the Agency shall provide an accepted final Agency-stamped label to the registrant within 2 business days following the registrant's written or electronic confirmation of agreement to the Agency.
(7) Due to low fee and short time frame this category is not eligible for small business waivers.
(8) This category includes amendments the sole purpose of which is to add "Design for the Environment" (DfE) (or equivalent terms that do not use "safe" or derivatives of "safe") logos to a label. DfE is a voluntary program. A label bearing a DfE logo is not considered an Agency endorsement because the ingredients in the qualifying product must meet objective, scientific criteria established and widely publicized by EPA.
(4) Pending pesticide registration applications
(A) In general
An applicant that submitted a registration application to the Administrator before the effective date of the Pesticide Registration Improvement Act of 2003, but that is not required to pay a registration service fee under paragraph (2)(B), may, on a voluntary basis, pay a registration service fee in accordance with paragraph (2)(B).
(B) Voluntary fee
The Administrator may not compel payment of a registration service fee for an application described in subparagraph (A).
(C) Documentation
An application for which a voluntary registration service fee is paid under this paragraph shall be submitted with documentation certifying—
(i) payment of the registration service fee; or
(ii) a request for a waiver from or reduction of the registration service fee.
(5) Resubmission of covered applications
If a covered application is submitted by a person that paid the fee for the application under paragraph (2), is determined by the Administrator to be complete, and is not approved or is withdrawn (without a waiver or refund), the submission of the same covered application by the same person (or a licensee, assignee, or successor of the person) shall not be subject to a fee under paragraph (2).
(6) Fee adjustment
(A) In general
Subject to the following sentence, effective for a covered application received during the period beginning on October 1, 2024, and ending on September 30, 2026, the Administrator may increase by 5 percent the registration service fee payable for the application under paragraph (3).1 No adjustment may be made under the preceding sentence until the date on which the Administrator begins to implement clauses (i) and (ii) of subsection (k)(2)(A).
(B) Additional adjustment
Subject to the following sentence, effective for a covered application received on or after October 1, 2026, the Administrator may increase by an additional 5 percent the registration service fee in effect as of September 30, 2026. No adjustment may be made under the preceding sentence until the date on which the Administrator begins to implement any recommendations for process improvements contained in the report under subsection (c)(4), as appropriate.
(C) Publication
The Administrator shall publish in the Federal Register the service fee schedules revised pursuant to this paragraph.
(7) Waivers and reductions
(A) In general
An applicant for a covered application may request the Administrator to waive or reduce the amount of a registration service fee payable under this section under the circumstances described in subparagraphs (D) through (G), except that no waiver or fee reduction shall be provided in connection with a request for a letter of certification (including a Gold Seal letter and a Certificate of Establishment).
(B) Documentation
(i) In general
A request for a waiver from or reduction of the registration service fee shall be accompanied by appropriate documentation demonstrating the basis for the waiver or reduction.
(ii) Certification
The applicant shall provide to the Administrator a written certification, signed by a responsible officer, that the documentation submitted to support the waiver or reduction request is accurate.
(iii) Inaccurate documentation
An application shall be subject to the applicable registration service fee payable under paragraph (3)(B) if, at any time, the Administrator determines that—
(I) the documentation supporting the waiver or reduction request is not accurate; or
(II) based on the documentation or any other information, the waiver or reduction should not have been granted or should not be granted.
(C) Determination to grant or deny request
As soon as practicable, but not later than 60 days, after the date on which the Administrator receives a request for a waiver or reduction of a registration service fee under this paragraph, the Administrator shall—
(i) determine whether to grant or deny the request; and
(ii) notify the applicant of the determination.
(D) Minor uses
(i) In general
The Administrator may exempt from, or waive a portion of, the registration service fee for an application for minor uses for a pesticide.
(ii) Supporting documentation
An applicant requesting a waiver or exemption under this subparagraph shall provide supporting documentation that demonstrates, to the satisfaction of the Administrator, that anticipated revenues from the uses that are the subject of the application would be insufficient to justify imposition of the full application fee.
(E) IR–4 exemption
The Administrator shall exempt an application from the registration service fee if the Administrator determines that—
(i) the application is solely associated with a tolerance petition submitted in connection with the Inter-Regional Project Number 4 (IR–4) as described in section 2 of Public Law 89–106 (7 U.S.C. 450i(e)); 1 and
(ii) the exemption is in the public interest.
(F) Small businesses
(i) In general
The Administrator shall waive 50 percent of the registration service fees payable by an entity for a covered application under this section if the entity is a small business (as defined in section 136a–1(i)(1)(E)(ii) of this title) at the time of application.
(ii) Waiver of fees
The Administrator shall waive 75 percent of the registration service fees payable by an entity under this section if the entity—
(I) is a small business (as defined in section 136a–1(i)(1)(E)(ii) of this title) at the time of application; and
(II) has average annual global gross revenues described in section 136a–1(i)(1)(E)(ii)(I)(bb) of this title that does not exceed $10,000,000, at the time of application.
(iii) Formation for waiver
The Administrator shall not grant a waiver under this subparagraph if the Administrator determines that the entity submitting the application has been formed or manipulated primarily for the purpose of qualifying for the waiver.
(iv) Documentation
An entity requesting a waiver under this subparagraph shall provide to the Administrator—
(I) documentation demonstrating that the entity is a small business (as defined in section 136a–1(i)(1)(E)(ii) of this title) at the time of application; and
(II) if the entity is requesting a waiver of 75 percent of the applicable registration service fees payable under this section, documentation demonstrating that the entity has an average annual global gross revenue described in section 136a–1(i)(1)(E)(ii)(I)(bb) of this title that does not exceed $10,000,000, at the time of application.
(G) Federal and State agency exemptions
An agency of the Federal Government or a State government shall be exempt from covered registration service fees under this section.
(8) Refunds
(A) Early withdrawals
If, during the first 60 days after the beginning of the applicable decision time review period under subsection (f)(3), a covered application is withdrawn by the applicant, the Administrator shall refund all but 25 percent.2 of the total registration service fee payable under paragraph (3)(B) for the application.
(B) Withdrawals after the first 60 days of decision review time period
(i) In general
If a covered application is withdrawn after the first 60 days of the applicable decision time review period, the Administrator shall determine what portion, if any, of the total registration service fee payable under paragraph (3)(B) for the application may be refunded based on the proportion of the work completed at the time of withdrawal.
(ii) Timing
The Administrator shall—
(I) make the determination described in clause (i) not later than 90 days after the date the application is withdrawn; and
(II) provide any refund as soon as practicable after the determination.
(C) Discretionary refunds
(i) In general
In the case of a covered application that has been filed with the Administrator and has not been withdrawn by the applicant, but for which the Administrator has not yet made a final determination, the Administrator may refund a portion of a covered registration service fee if the Administrator determines that the refund is justified.
(ii) Basis
The Administrator may provide a refund for an application under this subparagraph—
(I) on the basis that, in reviewing the application, the Administrator has considered data submitted in support of another covered application;
(II) on the basis that the Administrator completed portions of the review of the application before the effective date of this section; or
(III) on the basis that the Administrator rejected the application under subsection (f)(4)(B).
(D) Credited fees
In determining whether to grant a refund under this paragraph, the Administrator shall take into account any portion of the registration service fees credited under paragraph (2) or (4).
(c) Pesticide Registration Fund
(1) Establishment
There is established in the Treasury of the United States a Pesticide Registration Fund to be used in carrying out this section (referred to in this section as the "Fund"), consisting of—
(A) such amounts as are deposited in the Fund under paragraph (2);
(B) any interest earned on investment of amounts in the Fund under paragraph (5); and
(C) any proceeds from the sale or redemption of investments held in the Fund.
(2) Deposits in Fund
Subject to paragraph (4), the Administrator shall deposit fees collected under this section in the Fund.
(3) Expenditures from Fund
(A) In general
Subject to subparagraphs (B) and (C) and paragraph (4), the Administrator may make expenditures from the Fund—
(i) to cover the costs associated with the review and decisionmaking pertaining to all applications for which registration service fees have been paid under this section; and
(ii) to otherwise carry out this section.
(B) Endangered species review of outdoor use of pesticide products
(i) In general
The Administrator shall use the amounts made available in the Fund to develop, receive comments with respect to, and finalize, guidance to registrants regarding analysis necessary to support the review of outdoor uses of pesticide products under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).
(ii) Deadlines for guidance
The Administrator shall issue final guidance required by clause (i) in accordance with the following:
(I) With respect to new active ingredients or any registration review decision proposed for 1 or more outdoor uses, not later than 9 months after December 29, 2022.
(II) With respect to new outdoor uses of a registered pesticide, not later than 1 year after December 29, 2022.
(III) With respect to antimicrobial pesticide products, not later than 3 years after December 29, 2022.
(C) Independent third party assessments
(i) In general
The Administrator shall use the amounts made available in the Fund to carry out the activities described in clauses (ii) and (iii).
(ii) Workforce assessment
(I) In general
The Administrator shall procure a competitive contract with a qualified, independent contractor with expertise in assessing public sector workforce data analysis and reporting to conduct an assessment of current methodologies and data or metrics available to represent the workforce implementing the Pesticide Registration Improvement Act of 2022 and the amendments made by that Act, including an assessment of filled and vacant positions and full-time equivalent employees relating to that implementation.
(II) Report
Not later than 2 years after December 29, 2022—
(aa) the contractor selected under subclause (I) shall submit to the Administrator a report describing—
(AA) the findings from the assessment under that subclause; and
(BB) recommendations for improved methodologies to represent full-time equivalent resources described in that subclause; and
(bb) the Administrator shall publish the report submitted under item (aa) on the website of the Environmental Protection Agency.
(iii) Process assessment
(I) In general
(aa) Contracts
Within 1 year of December 29, 2022, to the extent practicable, the Administrator shall issue a competitive contract to a private, independent consulting firm—
(AA) to conduct the assessment described in subclause (II); and
(BB) to submit to the Administrator a report describing the findings of the assessment and the processes and performance of the Environmental Protection Agency relating to the implementation of the Pesticide Registration Improvement Act of 2022 and the amendments made by that Act.
(bb) Eligibility
The firm described in item (aa) shall be capable of performing the technical analysis, management assessment, and program evaluation tasks required to address the scope of the assessment under subclause (II).
(II) Assessment
(aa) In general
The Administrator, applicants, and registrants shall participate in a targeted assessment of the process for the review of applications submitted under this subchapter.
(bb) Consultation
The firm selected under subclause (I) shall consult with the Administrator and applicants at the start of the assessment under item (aa) and prior to submission of the report under subclause (I)(aa)(BB).
(cc) Requirements
The assessment under item (aa) shall evaluate and make recommendations regarding—
(AA) the initial content screen;
(BB) the preliminary technical screen;
(CC) performance, processes, and progress toward reducing renegotiation rates and the average length of renegotiations;
(DD) performance, processes, and progress toward eliminating the backlog of registrant submissions not covered by subsection (b)(3);
(EE) performance, processes, and progress toward ensuring that all registrant submissions not covered by subsection (b)(3) are completed by the applicable deadlines described in the notice of the Administrator entitled "Pesticide Registration Notice (PR) 98–10: Notifications, Non-Notifications and Minor Formulation Amendments" and dated October 22, 1998 (and any successor amendments to that notice) and described in subsections (c)(3)(B) and (h) of section 136a of this title;
(FF) compliance with the provisions of this subchapter relating to renegotiations and registrant submissions not covered by subsection (b)(3);
(GG) information technology systems;
(HH) recommended improvements to employee training;
(II) performance, progress, and processes in completing registration review; and
(JJ) other appropriate issues, such as submissions by inert suppliers and fast-track amendments under subsections (c)(3)(B) and (h) of section 136a of this title.
(III) Report to Congress
Not later than 1 year after the receipt of an assessment required under this section, the Administrator shall submit to the Committee on Agriculture, Nutrition, and Forestry of the Senate and the Committee on Agriculture of the House of Representatives—
(aa) a copy of each such assessment; and
(bb) the Administrator's evaluation of the findings and recommendations contained in each such assessment.
(IV) Recommendations
The Administrator shall include with the report submitted under subclause (III) a classification of each recommendation described in the report as—
(aa) can be implemented through administrative action of the Administrator; or
(bb) requires a statutory change.
(4) Collections and appropriations Acts
The fees authorized by this section and amounts deposited in the Fund—
(A) shall be collected and made available for obligation only to the extent provided in advance in appropriations Acts;
(B) shall be available during periods in which Environmental Protection Agency employees are on shutdown or emergency furlough as a result of a lapse in appropriations; and
(C) shall be available without fiscal year limitation.
(5) Unused funds
(A) In general
Amounts in the Fund not currently needed to carry out this section shall be—
(i) maintained readily available or on deposit;
(ii) invested in obligations of the United States or guaranteed by the United States; or
(iii) invested in obligations, participations, or other instruments that are lawful investments for fiduciary, trust, or public funds.
(B) Use of investment income
After consultation with the Secretary of the Treasury, the Administrator may use income from investments described in clauses (ii) and (iii) of subparagraph (A) to carry out this section.
(d) Assessment of fees
(1) Definition of covered functions
In this subsection, the term "covered functions" means functions of the Office of Pesticide Programs of the Environmental Protection Agency, as identified in key programs and projects of the final operating plan for the Environmental Protection Agency submitted as part of the budget process for fiscal year 2002, regardless of any subsequent transfer of 1 or more of the functions to another office or agency or the subsequent transfer of a new function to the Office of Pesticide Programs.
(2) Minimum amount of appropriations
Registration service fees may not be assessed for a fiscal year under this section unless the amount of appropriations for salaries, contracts, and expenses for the functions of the Office of Pesticide Programs of the Environmental Protection Agency for the fiscal year (excluding the amount of any fees appropriated for the fiscal year) are equal to or greater than $166,000,000.
(3) Use of fees
Registration service fees authorized by this section shall be available, in the aggregate, only to defray increases in the costs associated with the review and decisionmaking for the review of pesticide registration applications and associated tolerances (including increases in the number of full-time equivalent positions in the Environmental Protection Agency engaged in those activities) over the costs for fiscal year 2002, excluding costs paid from fees appropriated for the fiscal year.
(4) Subsequent authority
If the Administrator does not assess registration service fees under subsection (b) during any portion of a fiscal year as the result of paragraph (2) and is subsequently permitted to assess the fees under subsection (b) during the fiscal year, the Administrator shall assess and collect the fees, without any modification in rate, at any time during the fiscal year, notwithstanding any provisions of subsection (b) relating to the date fees are to be paid.
(e) Reforms to reduce decision time review periods and prevent double payment of registration fees
(1) Reduction of decision time review periods
To the maximum extent practicable consistent with the degrees of risk presented by pesticides and the type of review appropriate to evaluate risks, the Administrator shall identify and evaluate reforms to the pesticide registration process under this subchapter with the goal of reducing decision review periods in effect on the effective date of the Pesticide Registration Improvement Extension Act of 2018 for pesticide registration actions for covered pesticide registration applications (including reduced risk applications). Such reforms shall include identifying opportunities for streamlining review processes for applications for a new active ingredient or a new use and providing prompt feedback to applicants during such review process.
(2) Prevention of double payment of registration service fees
The Administrator shall develop and implement a process to determine the appropriate fee category or categories for an application that qualifies for more than one fee category in order to assist applicants and prevent unnecessary payment of fees for multiple categories for a single application.
(f) Decision time review periods
(1) In general
Not later than 30 days after the effective date of the Pesticide Registration Improvement Act of 2022, the Administrator shall make publicly available a schedule of decision review periods for covered pesticide registration actions or for any other action covered by a table specified in subsection (b)(3)(B) and corresponding registration service fees under this subchapter.
(2) Report
The schedule shall be the same as the applicable schedule provided under subsection (b)(3)(B).
(3) Applications subject to decision time review periods
The decision time review periods specified in paragraph (1) shall apply to—
(A) covered pesticide registration applications subject to registration service fees under subsection (b)(2);
(B) covered pesticide registration applications for which an applicant has voluntarily paid registration service fees under subsection (b)(4); and
(C) applications for any other action covered by a table specified in subsection (b)(3)(B).
(4) Start of decision time review period
(A) In general
Except as provided in subparagraphs (C), (D), and (E), in the case of a covered application accompanied by the registration service fee required under this section, the decision time review period begins 21 days after the date on which the Administrator receives the covered application and fee.
(B) Initial content and preliminary technical screenings
(i) Screenings
(I) Initial content
Not later than 21 days after receiving an application and the required registration service fee, the Administrator shall conduct an initial screening of the contents of the application in accordance with clause (iii).
(II) Preliminary technical screening
After conducting the initial content screening described in subclause (I) and in accordance with clause (iv), the Administrator shall conduct a preliminary technical screening—
(aa) not later than 45 days after the date on which the decision time review period begins (for applications with decision time review periods of not more than 180 days); and
(bb) not later than 90 days after the date on which the decision time review period begins (for applications with decision time review periods greater than 180 days).
(III) Final fee category
The fee category of a covered application or other actions may not be changed, without providing the information to the applicant, after completion of the preliminary technical screening described in clause (iv).
(ii) Rejection
(I) In general
If the Administrator determines at any time before the Administrator completes the preliminary technical screening under clause (i)(II) that the application failed the initial content or preliminary technical screening and the applicant does not correct the failure before the date that is 10 business days after the applicant receives a notification of the failure, the Administrator shall reject the application.
(II) Written notification
The Administrator shall make every effort to provide a written notification of a rejection under subclause (I) during the 10-day period that begins on the date the Administrator completes the preliminary technical screening.
(iii) Requirements of initial content screening
In conducting an initial content screening of an application, the Administrator shall automate the process, to the maximum extent practicable, and determine whether—
(I)(aa) the applicable registration service fee has been paid; or
(bb) at least 25 percent of the applicable registration service fee has been paid and the application contains a waiver or refund request for the outstanding amount and documentation establishing the basis for the waiver request; and
(II) the application appears to contain all the necessary forms, data, and draft labeling, formatted in accordance with guidance published by the Administrator.
(iv) Requirements of preliminary technical screening
In conducting a preliminary technical screening of an application, the Administrator shall—
(I) determine if the application and the data and information submitted with the application are accurate and complete;
(II) determine if the application, data, and information are consistent with the proposed labeling and any proposal for a tolerance or exemption from the requirement for a tolerance under section 408 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 346a), and are such that, subject to full review under the standards of this subchapter, could result in the granting of the application;
(III) determine, if applicable, whether an application qualifies for a reduced risk determination under subsection (c)(10) or (h) of section 136a of this title;
(IV) grant or deny any data waiver requests submitted by the applicant with the application;
(V) verify and validate the accuracy of the fee category selected by the applicant; and
(VI) notify the applicant, in writing, if a new or different fee category is required and calculate the new decision review time based on the original submission date.
(C) Applications with waiver or reduction requests
(i) In general
In the case of an application submitted with a request for a waiver or reduction of registration service fees under subsection (b)(7), the decision time review period shall be determined in accordance with this subparagraph.
(ii) Request granted with no additional fees required
If the Administrator grants the waiver or reduction request and no additional fee is required, the decision time review period begins on the earlier of—
(I) the date on which the Administrator grants the request; or
(II) the date that is 60 days after the date of receipt of the application.
(iii) Request granted with additional fees required
If the Administrator grants the waiver or reduction request, in whole or in part, but an additional registration service fee is required, the decision time review period begins on the date on which the Administrator receives certification of payment of the applicable registration service fee.
(iv) Request denied
If the Administrator denies the waiver or reduction request, the decision time review period begins on the date on which the Administrator receives certification of payment of the applicable registration service fee.
(D) Pending applications
(i) In general
The start of the decision time review period for applications described in clause (ii) shall be the date on which the Administrator receives certification of payment of the applicable registration service fee.
(ii) Applications
Clause (i) applies to—
(I) covered pesticide registration applications for which voluntary fees have been paid under subsection (b)(4); and
(II) covered pesticide registration applications received on or after the effective date of the Pesticide Registration Improvement Act of 2003 but submitted without the applicable registration service fee required under this section due to the inability of the Administrator to assess fees under subsection (d)(1).
(E) Applications for reduced risk
(i) Fee
If an application for a reduced risk new active ingredient or a reduced risk new use is determined not to qualify as reduced risk, the applicant shall pay the difference in fee for the corresponding non-reduced risk application.
(ii) Decision review time period
After receipt by the Administrator of the original covered reduced risk application and fee, the decision time review period for the corresponding non-reduced risk application shall begin within the time periods described in subparagraph (A), based on the submission date of the original covered reduced risk application.
(5) Extension of decision time review period
(A) Notification
If the Administrator cannot meet a decision time review period under this subsection, the Administrator shall notify the applicant, in writing, of—
(i) the reasons why additional time is needed; and
(ii) the number of days needed that would allow the Administrator to make a regulatory decision.
(B) Extension by negotiation or mutual agreement
The Administrator, acting solely through the Director of the Office of Pesticide Programs, and the applicant may mutually agree, in writing, to extend a decision time review period under this subsection if—
(i) there is new or additional data or information from the applicant that is necessary for the Administrator to make a decision on the application that cannot be made available within the original decision time review period; or
(ii) a public comment period associated with the application generates significant comments that cannot be addressed within the original decision time review period.
(C) Priority
Once a decision time review period for a covered action described in subsection (b)(3)(B) is missed or extended, the Administrator shall make any action on the application a priority.
(g) Judicial review
(1) In general
Any applicant adversely affected by the failure of the Administrator to make a determination on the application of the applicant for registration of a new active ingredient or new use for which a registration service fee is paid under this section may obtain judicial review of the failure solely under this section.
(2) Scope
(A) In general
In an action brought under this subsection, the only issue on review is whether the Administrator failed to make a determination on the application specified in paragraph (1) by the end of the applicable decision time review period required under subsection (f) for the application.
(B) Other actions
No other action authorized or required under this section shall be judicially reviewable by a Federal or State court.
(3) Timing
(A) In general
A person may not obtain judicial review of the failure of the Administrator to make a determination on the application specified in paragraph (1) before the expiration of the 2-year period that begins on the date on which the decision time review period for the application ends.
(B) Meeting with Administrator
To be eligible to seek judicial review under this subsection, a person seeking the review shall first request in writing, at least 120 days before filing the complaint for judicial review, a decision review meeting with the Administrator.
(4) Remedies
The Administrator may not be required or permitted to refund any portion of a registration service fee paid in response to a complaint that the Administrator has failed to make a determination on the covered pesticide registration application specified in paragraph (1) by the end of the applicable decision review period.
(h) Accounting
The Administrator shall—
(1) provide an annual accounting of the registration service fees paid to the Administrator and disbursed from the Fund, by providing financial statements in accordance with—
(A) the Chief Financial Officers Act of 1990 (Public Law 101–576; 104 Stat. 2838) and amendments made by that Act; and
(B) the Government Management Reform Act of 1994 (Public Law 103–356; 108 Stat. 3410) and amendments made by that Act;
(2) provide an accounting describing expenditures from the Fund authorized under subsection (c); and
(3) provide an annual accounting describing collections and expenditures authorized under subsection (d).
(i) Auditing
(1) Financial statements of agencies
For the purpose of section 3515(c) of title 31, the Fund shall be considered a component of an executive agency.
(2) Components
The annual audit required under sections 3515(b) and 3521 of that title of the financial statements of activities under this section shall include an analysis of—
(A) the fees collected under subsection (b) and disbursed;
(B) compliance with subsection (f);
(C) the amount appropriated to meet the requirements of subsection (d)(1); and
(D) the reasonableness of the allocation of the overhead allocation of costs associated with the review and decisionmaking pertaining to applications under this section.
(3) Inspector General
The Inspector General of the Environmental Protection Agency shall—
(A) conduct the annual audit required under this subsection; and
(B) report the findings and recommendations of the audit to the Administrator and to the appropriate committees of Congress.
(j) Personnel levels
All full-time equivalent positions supported by fees authorized and collected under this section shall not be counted against the agency-wide personnel level goals of the Environmental Protection Agency.
(k) Reports and information technology
(1) Reports
(A) In general
Not later than 120 days after the last day of each of fiscal years 2023 through 2027, the Administrator shall publish an annual report describing—
(i) actions taken under this section;
(ii) registrant submissions not covered by subsection (b)(3)(B);
(iii) the initial content and preliminary technical screenings required in subsection (f)(4)(B); and
(iv) staffing relating to implementing the Pesticide Registration Improvement Act of 2022 and the amendments made by that Act.
(B) Contents
Each report published under subparagraph (A) shall include a summary of the following information:
(i) Actions under this section
To the extent practicable, data for each action taken under this section that is completed during the fiscal year covered by the report or pending at the conclusion of that fiscal year, organized by registering division, including—
(I) the Action Code;
(II) the application receipt date;
(III) the electronic portal tracking number assigned to the application at the time of submission to the electronic submission portal or the Environmental Protection Agency tracking number;
(IV) the original decision due date based on the Action Code;
(V) the dates of any renegotiations and the renegotiated due dates, if applicable;
(VI) the reasons for each renegotiation, if applicable;
(VII) if the submission had to be recoded, reassigned codes, if applicable;
(VIII) the date that the submission was recoded, if applicable;
(IX) the decision completion date, if the action has been completed;
(X) the status of the action, which may be—
(aa) failed initial content screen;
(bb) failed preliminary technical screen;
(cc) approved;
(dd) withdrawn;
(ee) denied;
(ff) do not grant; or
(gg) pending;
(XI) the reason for any denial or do not grant decision, if applicable;
(XII) a review of the progress made in carrying out each requirement of subsections (e) and (f), including, to the extent determined appropriate by the Administrator and consistent with the authorities of the Administrator and limitations on delegation of functions by the Administrator, recommendations for the allowance and use of summaries of acute toxicity studies;
(XIII) a review of the progress in carrying out section 136a(g) of this title, including—
(aa) 3 the number of pesticides or pesticide cases reviewed and the number of registration review decisions completed, including—
(AA) the number of cases cancelled;
(BB) the number of cases requiring risk mitigation measures;
(CC) the number of cases removing risk mitigation measures;
(DD) the number of cases with no risk mitigation needed; and
(EE) the number of cases in which risk mitigation has been fully implemented;
(XIV) a review of the progress made toward implementing enhancements to—
(aa) the electronic tracking of conditional registrations; and
(bb) the endangered species database;
(XV) a review of the progress made in updating the Pesticide Incident Data System, including progress toward making the information contained in the System available to the public (as the Administrator determines is appropriate);
(XVI) an assessment of the public availability of summary pesticide usage data;
(XVII) the number of the active ingredients approved, new uses, and pesticide end use products granted in connection with the Design for the Environment program (or any successor program) of the Environmental Protection Agency;
(XVIII) with respect to funds in the Reregistration and Expedited Processing Fund described under section 136a–1(k) of this title, a review that includes—
(aa) a description of the amount and use of such funds—
(AA) to carry out activities relating to worker protection under subparagraphs (G) and (H) of section 136a–1(i)(1) of this title;
(BB) to award partnership grants under subparagraph (I) of such section; and
(CC) to carry out the pesticide safety education program under subparagraph (J) of such section;
(bb) an evaluation of the appropriateness and effectiveness of the activities, grants, and program under subparagraphs (G), (H), (I), and (J) of such section;
(cc) a description of how stakeholders are engaged in the decision to fund such activities, grants, and program in accordance with the stakeholder input provided under such subparagraphs; and
(dd) with respect to activities relating to worker protection carried out under subparagraphs (G) and (H) of section 136a–1(i)(1) of this title, a summary of the analyses from stakeholders, including from worker community-based organizations, on the appropriateness and effectiveness of such activities.
(XIX) beginning two years after enactment, report on the progress of meeting the deadlines listed in paragraph (5) of section 136a(f) of this title; and
(XX) a review of progress made in implementing the pesticide surveillance program referred to in paragraph (8) of section 136a–1(k) of this title.
(ii) Registrant submissions not covered by subsection (b)(3)(B)
Each registrant submission not covered by subsection (b)(3)(B), that is completed during the fiscal year covered by the report or pending at the conclusion of that fiscal year, organized by registering division, including—
(I) the submission date;
(II) the electronic portal tracking number assigned to the application at the time of the submission of the application to the electronic submission portal;
(III) the type of regulatory action, as defined by statute or guidance document, and the specific label action;
(IV) the status of the action;
(V) the due date;
(VI) the reason for the outcome; and
(VII) the completion date, if applicable.
(iii) Screening process
Data for the initial content screens and preliminary technical screens that are completed during the fiscal year covered by the report or pending at the conclusion of that fiscal year, organized by registering division, including—
(I) the number of applications successfully passing each type of screen;
(II) the number of applications that failed the screening process for each type of screen;
(III) the number of notifications issued by the Administrator under subsection (f)(4)(B)(ii)(II);
(IV) the number of notifications issued by the Administrator under subsection (f)(4)(B)(ii)(I) and the number of applications resulting in a rejection; and
(V) the number of notifications issued under section 152.105 of title 40, Code of Federal Regulations (or successor regulations), and to the extent practicable, the reasons for that issuance.
(iv) Staffing
Data on the staffing relating to work covered under the Pesticide Registration Improvement Act of 2022 and the amendments made by that Act, organized by registering division, including—
(I) the number of new hires and personnel departures;
(II) the number of full-time equivalents at the end of each fiscal year;
(III) the number of full-time equivalents working on registration review activities; and
(IV) the number of full-time equivalents working on registrant submissions not covered by subsection (b)(3)(B).
(C) Publication
The Administrator shall publish each report under subparagraph (A)—
(i) on the website of the Environmental Protection Agency; and
(ii) by such other methods as the Administrator determines to be the most effective for efficiently disseminating the report.
(2) Information technology
(A) System
Not later than 1 year after December 29, 2022, the Administrator shall establish an information technology system that—
(i) includes all registering divisions in the Office of Pesticide Programs;
(ii) provides a real-time, accurate, tracking system for all regulatory submissions to the Office of Pesticide Programs;
(iii) provides a 4 real-time, accessible information 4 that provides each applicant confidential, online access to the status and progress of the regulatory submissions of the applicant; and
(iv) updates the electronic submission portal—
(I) to ensure that label reviews are limited to current label changes, to the maximum extent practicable;
(II) to automate, to the extent practicable, minor, low risk regulatory actions; and
(III) to allow self-certification of certain regulatory actions, as determined by the Administrator.
(B) Access to registration data and decisions
The Administrator shall implement efforts to expand existing, and develop new, information technology tools and databases to improve access by Environmental Protection Agency employees to data used to fulfill registrations, and public access to information about regulatory decisionmaking tools, including opportunities for—
(i) analysis of the impact of submitted studies on Environmental Protection Agency assessments and decisions;
(ii) facilitation of read-across or computational model development to help fill information gaps;
(iii) tracking and reporting submission and decision metrics relating to the use and acceptance of test methods; and
(iv) drafting and publication of policies communicating Environmental Protection Agency acceptance of novel technologies or approaches.
(l) Savings clause
Nothing in this section affects any other duties, obligations, or authorities established by any other section of this subchapter, including the right to judicial review of duties, obligations, or authorities established by any other section of this subchapter.
(m) Termination of effectiveness
(1) In general
Except as provided in paragraph (2), the authority provided by this section terminates on September 30, 2027.
(2) Phase out
(A) Fiscal year 2028
During fiscal year 2028, the requirement to pay and collect registration service fees applies, except that the level of registration service fees payable under this section shall be reduced 40 percent below the level in effect on September 30, 2027.
(B) Fiscal year 2029
During fiscal year 2029, the requirement to pay and collect registration service fees applies, except that the level of registration service fees payable under this section shall be reduced 70 percent below the level in effect on September 30, 2027.
(C) September 30, 2029
Effective September 30, 2029, the requirement to pay and collect registration service fees terminates.
(D) Decision review periods
(i) Pending applications
In the case of an application received under this section before September 30, 2027, the application shall be reviewed in accordance with subsection (f).
(ii) New applications
In the case of an application received under this section on or after September 30, 2027, subsection (f) shall not apply to the application.
(June 25, 1947, ch. 125, §33, as added Pub. L. 108–199, div. G, title V, §501(f)(2), Jan. 23, 2004, 118 Stat. 422; amended Pub. L. 110–94, §5, Oct. 9, 2007, 121 Stat. 1002; Pub. L. 110–193, §1(a), Mar. 6, 2008, 122 Stat. 649; Pub. L. 112–177, §2(a)(2)(B), (b), Sept. 28, 2012, 126 Stat. 1328, 1330; Pub. L. 116–8, §§5, 6, Mar. 8, 2019, 133 Stat. 487, 491; Pub. L. 117–328, div. HH, title VI, §§705, 706, Dec. 29, 2022, 136 Stat. 6008, 6018.)
Editorial Notes
References in Text
The effective date of the Pesticide Registration Improvement Act of 2003, and the effective date of this section, referred to in text, is the effective date of section 501 of Pub. L. 108–199, which is the date that is 60 days after Jan. 23, 2004, unless otherwise provided, see section 501(h) of Pub. L. 108–199, set out as an Effective Date of 2004 Amendment note under section 136a of this title.
The Federal Food, Drug, and Cosmetic Act, referred to in subsec. (b)(2)(B)(ii), is act June 25, 1938, ch. 675, 52 Stat. 1040, 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.
Paragraph (3), referred to in subsec. (b)(6)(A), probably should be a reference to paragraph (3)(B). Amendment by section 705(a)(1)(B) of Pub. L. 117–328 substituting "paragraph (3)(B)" for "paragraph (3)" wherever appearing in subsec. (b) was followed by the general amendment of subsec. (b)(6)(A) by section 705(a)(1)(D)(i) of Pub. L. 117–328, which contained the reference to paragraph (3).
Section 2 of Public Law 89–106, referred to in subsec. (b)(7)(E)(i), was formerly classified to secton 450i of this title prior to editorial reclassification and renumbering as section 3157 of this title.
The Endangered Species Act of 1973, referred to in subsec. (c)(3)(B)(i), is Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, which is classified principally to chapter 35 (§1531 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of Title 16 and Tables.
The Pesticide Registration Improvement Act of 2022, referred to in subsecs. (c)(3)(C)(ii)(I), (iii)(I)(aa)(BB) and (k)(1)(A)(iv), (B)(iv), is title VI (§701 et seq.) of div. HH of Pub. L. 117–328, Dec. 29, 2022, 136 Stat. 5996. For complete classification of this Act to the Code, see Short Title of 2022 Amendment note set out under section 136 of this title and Tables.
The effective date of the Pesticide Registration Improvement Extension Act of 2018, referred to in subsec. (e)(1), means the effective date of Pub. L. 116–8, which was approved Mar. 8, 2019.
The effective date of the Pesticide Registration Improvement Act of 2022, referred to in subsec. (f)(1), means the effective date of title VI of div. HH of Pub. L. 117–328, which was approved Dec. 29, 2022.
The Chief Financial Officers Act of 1990, referred to in subsec. (h)(1)(A), is Pub. L. 101–576, Nov. 15, 1990, 104 Stat. 2838. For complete classification of this Act to the Code, see Short Title of 1990 Amendment note set out under section 501 of Title 31, Money and Finance, and Tables.
The Government Management Reform Act of 1994, referred to in subsec. (h)(1)(B), is Pub. L. 103–356, Oct. 13, 1994, 108 Stat. 3410. For complete classification of this Act to the Code, see Short Title of 1994 Amendment note set out under section 3301 of Title 31, Money and Finance, and Tables.
Two years after enactment, referred to in subsec. (k)(1)(B)(i)(XIX), means two years after the enactment of section 136a(f)(5) of this title, as enacted by Pub. L. 117–328, which was approved Dec. 29, 2022.
Prior Provisions
A prior section 33 of act June 25, 1947, ch. 125, was renumbered section 34 and is classified to section 136x of this title.
Amendments
2022—Subsec. (b). Pub. L. 117–328, §705(a)(1)(B), substituted "paragraph (3)(B)" for "paragraph (3)" wherever appearing. Subsec. (b)(6)(A) was subsequently amended generally by Pub. L. 117–328, §705(a)(1)(D)(i), after which "paragraph (3)" appeared in text.
Subsec. (b)(2)(E)(iii). Pub. L. 117–328, §705(a)(1)(A), substituted "on completion of, where appropriate, the initial screening of the contents of the application or the preliminary technical screening" for "after review".
Subsec. (b)(3). Pub. L. 117–328, §705(a)(1)(C), designated existing provisions as subpar. (B), inserted heading, and added subpar. (A).
Subsec. (b)(3)(B). Pub. L. 117–328, §706, added subpar. (B) and struck out former subpar. (B), as designated by section 705(a)(1)(C) of Pub. L. 117–328, which set out the schedule of covered applications and other actions and their registration service fees.
Subsec. (b)(6)(A), (B). Pub. L. 117–328, §705(a)(1)(D), which directed amendment of subpars. (A) and (B) "to read as follows" but did not include subpar. designations or headings, was executed by amending the text only and retaining the existing designations and headings, to reflect the probable intent of Congress. Prior to amendment, subpars. (A) and (B) related to fee adjustment between Oct. 1, 2019, and Sept. 30, 2021, and an additional fee adjustment starting on Oct. 1, 2021.
Subsec. (b)(7)(A). Pub. L. 117–328, §705(a)(1)(E), substituted "(including a Gold Seal letter and a Certificate of Establishment)" for "(commonly referred to as a Gold Seal letter)".
Subsec. (c)(3)(B), (C). Pub. L. 117–328, §705(b)(1), added subpars. (B) and (C) and struck out former subpar. (B). Prior to amendment, text of subpar. (B) read as follows:
"(i)
"(ii)
"(iii)
Subsec. (c)(4)(B), (C). Pub. L. 117–328, §705(b)(2), added subpar. (B) and redesignated former subpar. (B) as (C).
Subsec. (d)(2). Pub. L. 117–328, §705(c), struck out "(as in existence in fiscal year 2012)" after "for the functions" and substituted "$166,000,000." for "the amount of appropriations for covered functions for fiscal year 2012 (excluding the amount of any fees appropriated for the fiscal year)."
Subsec. (e). Pub. L. 117–328, §705(d), substituted "Reforms to reduce decision time review periods and prevent double payment of registration fees" for "Reforms to reduce decision time review periods" in subsec. heading, designated existing provisions as par. (1) and inserted par. heading, and added par. (2).
Subsec. (f). Pub. L. 117–328, §705(a)(2), substituted "subsection (b)(3)(B)" for "subsection (b)(3)" wherever appearing.
Subsec. (f)(1). Pub. L. 117–328, §705(e)(1), substituted "Pesticide Registration Improvement Act of 2022" for "Pesticide Registration Improvement Extension Act of 2018".
Subsec. (f)(4)(B)(i)(III). Pub. L. 117–328, §705(e)(2)(A)(i), added subcl. (III).
Subsec. (f)(4)(B)(iii). Pub. L. 117–328, §705(e)(2)(A)(ii), inserted "automate the process, to the maximum extent practicable, and" before "determine" in introductory provisions.
Subsec. (f)(4)(B)(iv). Pub. L. 117–328, §705(e)(2)(A)(iii), struck out "determine if" after "shall" in introductory provisions, inserted "determine if" at beginning of subcls. (I) and (II), and added subcls. (III) to (VI).
Subsec. (f)(4)(E). Pub. L. 117–328, §705(e)(2)(B), added subpar. (E) and struck out former subpar. (E). Prior to amendment, text read as follows: "In the case of a covered pesticide registration application listed in the Registration Division 2003 Work Plan of the Office of Pesticide Programs of the Environmental Protection Agency, the decision time review period begins on the date that is 30 days after the effective date of the Pesticide Registration Improvement Act of 2003."
Subsec. (f)(5). Pub. L. 117–328, §705(e)(3), added par. (5) and struck out former par. (5). Prior to amendment, text read as follows: "The Administrator and the applicant may mutually agree in writing to extend a decision time review period under this subsection."
Subsec. (k). Pub. L. 117–328, §705(f), added subsec. (k) and struck out former subsec. (k) which related to publication of annual reports and submission of another report to Congress.
Subsec. (m). Pub. L. 117–328, §705(g)(1), substituted "2027" for "2023" wherever appearing.
Subsec. (m)(2)(A). Pub. L. 117–328, §705(g)(2)(A), substituted "2028" for "2024" in heading and text.
Subsec. (m)(2)(B), (C). Pub. L. 117–328, §705(g)(2)(B), substituted "2029" for "2025" in heading and text.
2019—Subsec. (b)(2). Pub. L. 116–8, §5(a)(1)(A), struck out "pesticide registration" after "Covered" in heading.
Subsec. (b)(2)(A). Pub. L. 116–8, §5(a)(1)(B), inserted "or for any other action covered by a table specified in paragraph (3)" after "Pesticide Registration Improvement Act of 2003".
Subsec. (b)(3). Pub. L. 116–8, §6, amended par. (3) generally. Prior to amendment, par. (3) related to schedule of covered applications and registration service fees.
Subsec. (b)(5). Pub. L. 116–8, §5(a)(2), substituted "covered applications" for "pesticide registration applications" in heading and "covered application" for "pesticide registration application" in two places in text.
Subsec. (b)(6)(A). Pub. L. 116–8, §5(a)(3)(A), struck out "pesticide registration" after "Effective for a covered" and substituted "October 1, 2019, and ending on September 30, 2021" for "October 1, 2013, and ending on September 30, 2015".
Subsec. (b)(6)(B). Pub. L. 116–8, §5(a)(3)(B), struck out "pesticide registration" after "Effective for a covered" and substituted "2021" for "2015" in two places.
Subsec. (b)(6)(C). Pub. L. 116–8, §5(a)(3)(C), substituted "service fee schedules revised pursuant to this paragraph" for "revised registration service fee schedules".
Subsec. (b)(7)(A). Pub. L. 116–8, §5(a)(4)(A), substituted "covered application" for "covered pesticide registration" and inserted before period at end ", except that no waiver or fee reduction shall be provided in connection with a request for a letter of certification (commonly referred to as a Gold Seal letter)".
Subsec. (b)(7)(F)(i). Pub. L. 116–8, §5(a)(4)(B), struck out "pesticide registration" after "for a covered".
Subsec. (b)(8)(A). Pub. L. 116–8, §5(a)(5)(A), struck out "pesticide registration" after "a covered".
Subsec. (b)(8)(B)(i). Pub. L. 116–8, §5(a)(5)(B), struck out "pesticide registration" after "If a covered".
Subsec. (b)(8)(C)(i). Pub. L. 116–8, §5(a)(5)(C)(i), substituted "case of a covered" for "case of a pesticide registration".
Subsec. (b)(8)(C)(ii)(I). Pub. L. 116–8, §5(a)(5)(C)(ii), substituted "covered" for "pesticide registration".
Subsec. (c)(3)(B). Pub. L. 116–8, §5(b)(1), inserted ", partnership grants, and pesticide safety education" after "Worker protection" in heading.
Subsec. (c)(3)(B)(i). Pub. L. 116–8, §5(b)(2), substituted "2023" for "2017" and inserted before period at end ", with an emphasis on field-worker populations in the United States".
Subsec. (c)(3)(B)(ii). Pub. L. 116–8, §5(b)(3), substituted "2023" for "2017".
Subsec. (c)(3)(B)(iii). Pub. L. 116–8, §5(b)(4), substituted "2023" for "2017".
Subsec. (e). Pub. L. 116–8, §5(c), substituted "Pesticide Registration Improvement Extension Act of 2018" for "Pesticide Registration Improvement Extension Act of 2012" and inserted at end "Such reforms shall include identifying opportunities for streamlining review processes for applications for a new active ingredient or a new use and providing prompt feedback to applicants during such review process."
Subsec. (f)(1). Pub. L. 116–8, §5(d)(1), substituted "Pesticide Registration Improvement Extension Act of 2018" for "Pesticide Registration Improvement Extension Act of 2012" and inserted "or for any other action covered by a table specified in subsection (b)(3)" after "covered pesticide registration actions".
Subsec. (f)(3)(C). Pub. L. 116–8, §5(d)(2), added subpar. (C) and struck out former subpar. (C) which read as follows: "covered pesticide registration applications listed in the Registration Division 2003 Work Plan of the Office of Pesticide Programs of the Environmental Protection Agency."
Subsec. (f)(4)(A). Pub. L. 116–8, §5(d)(3), substituted "a covered application" for "a pesticide registration application" and "the covered application" for "the covered pesticide registration application".
Subsec. (k)(1). Pub. L. 116–8, §5(e)(1), substituted "2023" for "2017".
Subsec. (k)(2)(D)(i). Pub. L. 116–8, §5(e)(2)(A), added cl. (i) and struck out former cl. (i) which read as follows: "the number of pesticides or pesticide cases reviewed;".
Subsec. (k)(2)(G)(i). Pub. L. 116–8, §5(e)(2)(B)(i), substituted "paragraphs (4) and (5) of section 136a–1(k) of this title" for "section 136a–1(k)(4) of this title" and "such paragraphs" for "that section".
Subsec. (k)(2)(G)(ii) to (vii). Pub. L. 116–8, §5(e)(2)(B)(ii)–(iv), added cl. (ii), redesignated cl. (vii) as (iii), and struck out former cls. (ii) to (vi) which read as follows:
"(ii) implementing systems for the electronic tracking of registration submissions by December 31, 2013;
"(iii) implementing a system for tracking the status of conditional registrations, including making nonconfidential information related to the conditional registrations publicly available by December 31, 2013;
"(iv) implementing enhancements to the endangered species knowledge database, including making nonconfidential information related to the database publicly available;
"(v) implementing the capability to electronically submit and review labels submitted with registration actions;
"(vi) acquiring and implementing the capability to electronically assess and evaluate confidential statements of formula submitted with registration actions by December 31, 2014; and".
Subsec. (k)(2)(K) to (O). Pub. L. 116–8, §5(e)(2)(C)–(E), added subpars. (K) to (O).
Subsec. (m)(1). Pub. L. 116–8, §5(f)(1), substituted "2023" for "2017".
Subsec. (m)(2)(A). Pub. L. 116–8, §5(f)(2)(A), in heading, substituted "Fiscal year 2024" for "Fiscal year 2018" and in text, substituted "2024" for "2018" and "2023" for "2017".
Subsec. (m)(2)(B). Pub. L. 116–8, §5(f)(2)(B), in heading, substituted "Fiscal year 2025" for "Fiscal year 2019" and in text, substituted "2025" for "2019" and "2023" for "2017".
Subsec. (m)(2)(C). Pub. L. 116–8, §5(f)(2)(C), substituted "2025" for "2019" in heading and text.
Subsec. (m)(2)(D). Pub. L. 116–8, §5(f)(2)(D), substituted "2023" for "2017" in cls. (i) and (ii).
2012—Subsec. (b)(3). Pub. L. 112–177, §2(b)(1)(A), added par. (3) and struck out former par. (3) which related to schedule of covered applications and registration service fees.
Subsec. (b)(6)(A). Pub. L. 112–177, §2(b)(1)(B)(i), substituted "October 1, 2013" for "October 1, 2008" and "September 30, 2015" for "September 30, 2010".
Subsec. (b)(6)(B). Pub. L. 112–177, §2(b)(1)(B)(ii), substituted "October 1, 2015" for "October 1, 2010" and "September 30, 2015" for "September 30, 2010".
Subsec. (b)(7)(F)(i). Pub. L. 112–177, §2(a)(2)(B)(i), substituted "section 136a–1 (i)(1)(E)(ii)" for "section 136a–1(i)(5)(E)(ii)".
Subsec. (b)(7)(F)(ii). Pub. L. 112–177, §2(a)(2)(B)(i), (ii), substituted "section 136a–1 (i)(1)(E)(ii)" for "section 136a–1(i)(5)(E)(ii)" in subcl. (I) and "section 136a–1(i)(1)(E)(ii)(I)(bb)" for "136a–1(i)(5)(E)(ii)(I)(bb)" in subcl. (II).
Subsec. (b)(7)(F)(iv)(I). Pub. L. 112–177, §2(a)(2)(B)(i), substituted "section 136a–1 (i)(1)(E)(ii)" for "section 136a–1(i)(5)(E)(ii)".
Subsec. (b)(7)(F)(iv)(II). Pub. L. 112–177, §2(a)(2)(B)(ii), (iii), substituted "applicable" for "applicable.", "revenue" for "revenues", and "section 136a–1(i)(1)(E)(ii)(I)(bb)" for "section 136a–1(i)(5)(E)(ii)(I)(bb)".
Subsec. (b)(8)(C)(ii)(III). Pub. L. 112–177, §2(b)(1)(C), added subcl. (III).
Subsec. (c)(3)(B)(i). Pub. L. 112–177, §2(b)(2)(A), substituted "2013 through 2017" for "2008 through 2012".
Subsec. (c)(3)(B)(ii). Pub. L. 112–177, §2(b)(2)(B), substituted "grants, for each of fiscal years 2013 through 2017, $500,000." for "grants—
"(I) for each of fiscal years 2008 and 2009, $750,000; and
"(II) for each of fiscal years 2010 through 2012, $500,000."
Subsec. (c)(3)(B)(iii). Pub. L. 112–177, §2(b)(2)(C), substituted "2013 through 2017" for "2008 through 2012".
Subsec. (d)(2). Pub. L. 112–177, §2(b)(3)(A), substituted "2012" for "2002" in two places.
Subsec. (d)(4), (5). Pub. L. 112–177, §2(b)(3)(B), (C), redesignated par. (5) as (4) and struck out former par. (4). Prior to amendment, text of par. (4) read as follows: "The requirements of paragraph (2) shall have been considered to have been met for any fiscal year if the amount of appropriations for salaries, contracts, and expenses for the functions (as in existence in fiscal year 2002) of the Office of Pesticide Programs of the Environmental Protection Agency for the fiscal year (excluding the amount of any fees appropriated for the fiscal year) is not more than 3 percent below the amount of appropriations for covered functions for fiscal year 2002 (excluding the amount of any fees appropriated for the fiscal year)."
Subsec. (e). Pub. L. 112–177, §2(b)(4), substituted "Pesticide Registration Improvement Extension Act of 2012" for "Pesticide Registration Improvement Act of 2003".
Subsec. (f)(1). Pub. L. 112–177, §2(b)(5)(A), substituted "Pesticide Registration Improvement Extension Act of 2012, the Administrator shall make publicly available" for "Pesticide Registration Improvement Renewal Act, the Administrator shall publish in the Federal Register".
Subsec. (f)(2). Pub. L. 112–177, §2(b)(5)(B), substituted "provided under subsection (b)(3)." for "appearing in the Congressional Record on pages S10409 through S10411, dated July 31, 2007."
Subsec. (f)(4)(A). Pub. L. 112–177, §2(b)(5)(C)(i), inserted "and fee" before period at end.
Subsec. (f)(4)(B). Pub. L. 112–177, §2(b)(5)(C)(ii)(I), substituted "Initial content and preliminary technical screenings" for "Completeness of application" in heading.
Subsec. (f)(4)(B)(i). Pub. L. 112–177, §2(b)(5)(C)(ii)(I), (II), substituted "Screenings" for "In general" in cl. heading, designated existing provisions as subcl. (I) and inserted subcl. heading, and added subcl. (II).
Subsec. (f)(4)(B)(ii). Pub. L. 112–177, §2(b)(5)(C)(ii)(III), added cl. (ii) and struck out former cl. (ii). Prior to amendment, text read as follows: "If the Administrator determines under clause (i) that the application does not pass the initial screening and cannot be corrected within the 21-day period, the Administrator shall reject the application not later than 10 days after making the determination."
Subsec. (f)(4)(B)(iii). Pub. L. 112–177, §2(b)(5)(C)(ii)(IV), inserted "initial content" before "screening" in heading, "content" before "screening" in introductory provisions, and substituted "appears to contain" for "contains" in subcl. (II).
Subsec. (f)(4)(B)(iv). Pub. L. 112–177, §2(b)(5)(C)(ii)(V), added cl. (iv).
Subsec. (k)(1). Pub. L. 112–177, §2(b)(6)(A), substituted "March 1, 2017" for "March 1, 2014".
Subsec. (k)(2)(A)(viii). Pub. L. 112–177, §2(b)(6)(B)(i), added cl. (viii).
Subsec. (k)(2)(G) to (J). Pub. L. 112–177, §2(b)(6)(B)(ii)–(iv), added subpars. (G) to (J).
Subsec. (k)(4). Pub. L. 112–177, §2(b)(6)(C), added par. (4).
Subsec. (m)(1). Pub. L. 112–177, §2(b)(7)(A), substituted "2017" for "2012".
Subsec. (m)(2)(A). Pub. L. 112–177, §2(b)(7)(B)(i), substituted "2018" for "2013" in heading and "2018," for "2013," and "September 30, 2017" for "September 30, 2012" in text.
Subsec. (m)(2)(B). Pub. L. 112–177, §2(b)(7)(B)(ii), substituted "2019" for "2014" in heading and "2019," for "2014," and "September 30, 2017" for "September 30, 2012" in text.
Subsec. (m)(2)(C). Pub. L. 112–177, §2(b)(7)(B)(iii), substituted "2019" for "2014" in heading and "September 30, 2019" for "September 30, 2014" in text.
Subsec. (m)(2)(D). Pub. L. 112–177, §2(b)(7)(B)(iv), substituted "2017" for "2012" in cls. (i) and (ii).
2008—Subsec. (b)(7)(D)(i). Pub. L. 110–193, §1(a)(1)(A)(i), added cl. (i) and struck out former cl. (i). Prior to amendment, text read as follows: "The Administrator may waive or reduce a registration service fee for an application for minor uses for a pesticide."
Subsec. (b)(7)(D)(ii). Pub. L. 110–193, §1(a)(1)(A)(ii), inserted "or exemption" after "waiver".
Subsec. (b)(7)(E). Pub. L. 110–193, §1(a)(1)(B)(ii), substituted "exempt an application from the registration service fee" for "waive the registration service fee for an application" in introductory provisions.
Pub. L. 110–193, §1(a)(1)(B)(i), substituted "exemption" for "waiver" in heading.
Subsec. (b)(7)(E)(ii). Pub. L. 110–193, §1(a)(1)(B)(iii), substituted "exemption" for "waiver".
Subsec. (m)(2)(A), (B). Pub. L. 110–193, §1(a)(2), substituted "2012" for "2008".
2007—Subsec. (b)(2)(C)(ii). Pub. L. 110–94, §5(a)(1), added cl. (ii) and struck out former cl. (ii) which read as follows: "a request for a waiver from or reduction of the registration service fee."
Subsec. (b)(2)(D) to (H). Pub. L. 110–94, §5(a)(2), added subpars. (D) to (H).
Subsec. (b)(3)(A). Pub. L. 110–94, §5(b)(1)(A), substituted "Pesticide Registration Improvement Renewal Act" for "Pesticide Registration Improvement Act of 2003".
Subsec. (b)(3)(B). Pub. L. 110–94, §5(b)(1)(B), substituted "S10409 through S10411, dated July 31, 2007." for "S11631 through S11633, dated September 17, 2003."
Subsec. (b)(6). Pub. L. 110–94, §5(b)(2), added par. (6) and struck out former par. (6). Prior to amendment, text of par. (6) read as follows: "Effective for a covered pesticide registration application received on or after October 1, 2005, the Administrator shall—
"(A) increase by 5 percent the service fee payable for the application under paragraph (3); and
"(B) publish in the Federal Register the revised registration service fee schedule."
Subsec. (b)(7)(F)(ii). Pub. L. 110–94, §5(c)(1), substituted "75 percent" for "all" in introductory provisions.
Subsec. (b)(7)(F)(iv)(II). Pub. L. 110–94, §5(c)(2), substituted "75 percent of the applicable." for "all".
Subsec. (b)(8)(A). Pub. L. 110–94, §5(d), substituted "25 percent." for "10 percent".
Subsec. (c)(1)(B). Pub. L. 110–94, §5(e)(1), substituted "paragraph (5)" for "paragraph (4)".
Subsec. (c)(3)(B). Pub. L. 110–94, §5(e)(2)(A), added subpar. (B) and struck out former subpar. (B). Prior to amendment, text of subpar. (B) read as follows: "For each of fiscal years 2004 through 2008, the Administrator shall use approximately 1/17 of the amount in the Fund (but not more than $1,000,000, and not less than $750,000, for any fiscal year) to enhance current scientific and regulatory activities related to worker protection."
Subsec. (c)(3)(C). Pub. L. 110–94, §5(e)(2)(B), struck out subpar. (C). Text read as follows: "For each of fiscal years 2004 and 2005, the Administrator shall use approximately 1/34 of the amount in the Fund (but not to exceed $500,000 for any fiscal year) for the review and evaluation of new inert ingredients."
Subsec. (c)(5). Pub. L. 110–94, §5(e)(3), designated existing provisions as subpar. (A), inserted heading, redesignated former subpars. (A) to (C) as cls. (i) to (iii), respectively, of subpar. (A) and added subpar. (B).
Subsec. (d)(2). Pub. L. 110–94, §5(f), which directed substitution of "Registration" for "For fiscal years 2004, 2005 and 2006 only, registration", was executed by making the substitution for text which contained a comma after "2005" to reflect the probable intent of Congress.
Subsec. (f)(1). Pub. L. 110–94, §5(g)(1), substituted "Pesticide Registration Improvement Renewal Act" for "Pesticide Registration Improvement Act of 2003".
Subsec. (f)(2). Pub. L. 110–94, §5(g)(2), substituted "S10409 through S10411, dated July 31, 2007." for "S11631 through S11633, dated September 17, 2003."
Subsec. (f)(4)(B). Pub. L. 110–94, §5(g)(3), added subpar. (B) and struck out former subpar. (B) which provided criteria for determining completeness of pesticide registration applications.
Subsec. (k)(1). Pub. L. 110–94, §5(h)(1), substituted "March 1, 2014" for "March 1, 2009".
Subsec. (k)(2)(A)(ii) to (v). Pub. L. 110–94, §5(h)(2)(A)(i), (ii), added cls. (ii) to (iv) and redesignated former cl. (ii) as (v). Former cls. (iii) and (iv) redesignated (vi) and (vii), respectively.
Subsec. (k)(2)(A)(vi). Pub. L. 110–94, §5(h)(2)(A)(i), (iii), redesignated cl. (iii) as (vi) and added subcls. (IV) and (V).
Subsec. (k)(2)(A)(vii). Pub. L. 110–94, §5(h)(2)(A)(i), redesignated cl. (iv) as (vii).
Subsec. (k)(2)(D) to (F). Pub. L. 110–94, §5(h)(2)(B)–(D), added subpars. (D) to (F).
Subsec. (m)(1). Pub. L. 110–94, §5(i)(1), substituted "2012" for "2008".
Subsec. (m)(2)(A). Pub. L. 110–94, §5(i)(2)(A), substituted "2013" for "2009" in heading and text.
Subsec. (m)(2)(B), (C). Pub. L. 110–94, §5(i)(2)(B), substituted "2014" for "2010" in headings and text.
Subsec. (m)(2)(D). Pub. L. 110–94, §5(i)(2)(C), substituted "2012" for "2008" in two places.
Statutory Notes and Related Subsidiaries
Effective Date of 2012 Amendment
Amendment by Pub. L. 112–177 effective Oct. 1, 2012, see section 2(c) of Pub. L. 112–177, set out as a note under section 136a–1 of this title.
Effective Date of 2008 Amendment
Pub. L. 110–193, §1(b), Mar. 6, 2008, 122 Stat. 650, provided that: "The amendments made by subsection (a) [amending this section] take effect on October 1, 2007."
Effective Date of 2007 Amendment
Amendment by Pub. L. 110–94 effective Oct. 1, 2007, see section 6 of Pub. L. 110–94, set out as a note under section 136a of this title.
Effective Date
Section effective on the date that is 60 days after Jan. 23, 2004, except as otherwise provided, see section 501(h) of Pub. L. 108–199, set out as an Effective Date of 2004 Amendment note under section 136a of this title.
Implementation Dates With Respect to Fees
Increases in registration service fees specified in this section, as amended by title VI of div. HH of Pub. L. 117–328, not effective until 60 days after Dec. 29, 2022, regardless of whether this section specifies such increases to be effective for fiscal year 2023, see section 708(a)(1) of Pub. L. 117–328, set out in a note under section 136a–1 of this title.
Extension of Limitations on Fee Amounts and Usage of Fees
Subsection (c)(3)(B) of this section to continue in effect through Sept. 30, 2018, see section 401(a) of Pub. L. 115–141, formerly set out as a note under section 136a–1 of this title.
Pub. L. 115–141, div. M, title IV, §401(b)(2), Mar. 23, 2018, 132 Stat. 1050, extended the authority provided by this section until Sept. 30, 2018.
1 See References in Text note below.
2 So in original. The period probably should not appear.
3 So in original. There is no item (bb).
§136x. Severability
If any provision of this subchapter or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this subchapter which can be given effect without regard to the invalid provision or application, and to this end the provisions of this subchapter are severable.
(June 25, 1947, ch. 125, §34, formerly §26, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 998; renumbered §30, Pub. L. 95–396, §24(1), Sept. 30, 1978, 92 Stat. 836; renumbered §33, Pub. L. 104–170, title I, §121(1), Aug. 3, 1996, 110 Stat. 1492; renumbered §34, Pub. L. 108–199, div. G, title V, §501(f)(1), Jan. 23, 2004, 118 Stat. 422.)
Editorial Notes
Prior Provisions
A prior section 34 of act June 25, 1947, ch. 125, was renumbered section 35 and is classified to section 136y of this title.
Statutory Notes and Related Subsidiaries
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.
§136y. Authorization of appropriations
There is authorized to be appropriated to carry out this subchapter (other than section 136u(a) of this title)—
(1) $83,000,000 for fiscal year 1989, of which not more than $13,735,500 shall be available for research under this subchapter;
(2) $95,000,000 for fiscal year 1990, of which not more than $14,343,600 shall be available for research under this subchapter; and
(3) $95,000,000 for fiscal year 1991, of which not more than $14,978,200 shall be available for research under this subchapter.
(June 25, 1947, ch. 125, §35, formerly §27, as added Pub. L. 92–516, §2, Oct. 21, 1972, 86 Stat. 998; amended Pub. L. 94–51, July 2, 1975, 89 Stat. 257; Pub. L. 94–109, Oct. 10, 1975, 89 Stat. 571; Pub. L. 94–140, §3, Nov. 28, 1975, 89 Stat. 752; renumbered §31 and amended Pub. L. 95–396, §§24(1), 25, Sept. 30, 1978, 92 Stat. 836, 838; Pub. L. 96–539, §3, Dec. 17, 1980, 94 Stat. 3195; Pub. L. 98–201, §2, Dec. 2, 1983, 97 Stat. 1380; Pub. L. 99–198, title XVII, §1768, Dec. 23, 1985, 99 Stat. 1656; Pub. L. 100–532, title VII, §701, Oct. 25, 1988, 102 Stat. 2679; renumbered §34, Pub. L. 104–170, title I, §121(1), Aug. 3, 1996, 110 Stat. 1492; renumbered §35, Pub. L. 108–199, div. G, title V, §501(f)(1), Jan. 23, 2004, 118 Stat. 422.)
Editorial Notes
Codification
Another section 1768 of Pub. L. 99–198 enacted sections 154a and 159 and amended sections 151, 154, and 157 of Title 21, Food and Drugs.
Amendments
1988—Pub. L. 100–532 amended section generally. Prior to amendment, section read as follows: "There is authorized to be appropriated to carry out this subchapter for the period beginning October 1, 1985, and ending September 30, 1986, $68,604,200 of which not more than $11,993,100 shall be available for research under this subchapter."
1985—Pub. L. 99–198 substituted provisions authorizing appropriations of $68,604,200 for fiscal year 1986 of which not more than $11,993,100 shall be available for research for former provisions which had authorized appropriations for fiscal years 1973 through 1984.
1983—Pub. L. 98–201 authorized necessary appropriations for period beginning Oct. 1, 1983, and ending Sept. 30, 1984, not in excess of $64,200,000.
1980—Pub. L. 96–539 inserted provisions authorizing appropriations for period beginning Oct. 1, 1979, and ending Sept. 30, 1980, and for period beginning Oct. 1, 1980, and ending Sept. 30, 1981.
1978—Pub. L. 95–396, §25, substituted appropriations authorization of $46,636,000 for period beginning Oct. 1, 1976, and ending Sept. 30, 1977, for prior authorization of $23,600,000 for period beginning Oct. 1, 1976, and ending Mar. 31, 1977, and authorized appropriations of $54,500,000 for period beginning Oct. 1, 1977, and ending Sept. 30, 1978, and such sums as may be necessary, limited to $70,000,000, for period beginning Oct. 1, 1978, and ending Sept. 30, 1979.
1975—Pub. L. 94–140 authorized appropriation of $47,868,000 to carry out provisions of this subchapter for period beginning Oct. 1, 1975, and ending Sept. 30, 1976, and $23,600,000 for period beginning Oct. 1, 1976, and ending Mar. 31, 1977.
Pub. L. 94–109 inserted provisions authorizing appropriation of $5,983,500 for period beginning Oct. 1, 1975 and ending Nov. 15, 1975.
Pub. L. 94–51 authorized appropriation of $11,967,000 to carry out provisions of this subchapter for period beginning July 1, 1975, and ending Sept. 30, 1975.
Statutory Notes and Related Subsidiaries
Effective Date of 1988 Amendment
Pub. L. 100–532, title VII, §701, Oct. 25, 1988, 102 Stat. 2679, provided that amendment made by Pub. L. 100–532 is effective Oct. 1, 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.
CHAPTER 6A—NATIONAL LABORATORY ACCREDITATION
§138. Definitions
As used in this chapter:
(1) Agricultural product
The term "agricultural product" means any fresh fruit or vegetable or any commodity or product derived from livestock or fowl, that is marketed in the United States for human consumption.
(2) Certificate
The term "certificate" means a certificate of accreditation issued under this chapter.
(3) Laboratory
The term "laboratory" means any facility or vehicle that is owned by an individual or a public or private entity and is equipped and operated for the purpose of carrying out pesticide residue analysis on agricultural products for commercial purposes.
(4) Pesticide
The term "pesticide" means any substance that alone, in chemical combination, or in any formulation with one or more substances, is defined as a pesticide in section 136(u) of this title.
(5) Secretary
The term "Secretary" means the Secretary of Agriculture.
(Pub. L. 101–624, title XIII, §1321, Nov. 28, 1990, 104 Stat. 3562.)
§138a. National Laboratory Accreditation Program
(a) Establishment of Program
The Secretary shall administer a National Laboratory Accreditation Program under which laboratories that request accreditation and conduct residue testing of agricultural products, or that make claims to the public or buyers of agricultural products concerning chemical residue levels on agricultural products, shall be determined to meet certain minimum quality and reliability standards.
(b) Standards
The Secretary of Health and Human Services, after consultation with the Secretary and the Administrator of the Environmental Protection Agency, shall establish, through regulations, standards for the National Laboratory Accreditation program 1 that shall include—
(1) standards applicable to laboratories;
(2) qualifications for directors and other personnel; and
(3) standards and procedures for quality assurance programs.
(c) Accrediting bodies
The Secretary of Health and Human Services shall approve State agencies or private, nonprofit entities as accrediting bodies to act on behalf of such Secretary in implementing the certification and quality assurance programs in accordance with the requirements of this section. In making such approvals the Secretary of Health and Human Services shall—
(1) oversee and review the performance of any accrediting body acting on behalf of the Secretary to ensure that such accrediting body is in compliance with the requirements of the certification program under this section; and
(2) have the right to obtain from an accrediting body acting on behalf of the Secretary and from any laboratory that may be certified by such a body all records and materials that may be necessary for the oversight and review required by paragraph (1).
(d) Requirements
To be accredited under this chapter, a laboratory shall—
(1) prepare and submit an application for accreditation to the Secretary; and
(2) comply with such terms and conditions as are determined necessary by the Secretary and the Secretary of Health and Human Services.
(e) Exceptions
This chapter shall not apply to—
(1) a laboratory operated by a government agency;
(2) a laboratory operated by a corporation that only performs analysis of residues on agricultural products for such corporation or any wholly owned subsidiary of such corporation and does not make claims to the public or buyers based on such analysis;
(3) a laboratory operated by a partnership that only performs analysis of residues on agricultural products for the partners of such partnership and does not make claims to the public or buyers based on such analysis; or
(4) a laboratory not operated for commercial purposes that performs pesticide chemical residue analysis on agricultural products for research or quality control for the internal use of a person who is initiating the analysis.
(Pub. L. 101–624, title XIII, §1322, Nov. 28, 1990, 104 Stat. 3562.)
1 So in original. Probably should be capitalized.
§138b. Accreditation
(a) In general
The Secretary shall issue certificates of accreditation to laboratories that meet the requirements of this chapter, as determined by the Secretary.
(b) Requirements for accreditation
To receive accreditation under this chapter, a laboratory shall prepare and submit an application for accreditation to the Secretary and shall complete such required tests, and meet such standards as established under section 138a of this title.
(c) Failure to meet accreditation standards
The Secretary shall deny an application for accreditation or shall revoke any existing accreditation with respect to any laboratory that fails to meet the requirements for accreditation under this chapter.
(d) Limited accreditation
The Secretary may issue certificates of accreditation to laboratories that are limited to specific fields of testing.
(Pub. L. 101–624, title XIII, §1323, Nov. 28, 1990, 104 Stat. 3563.)
§138c. Samples
(a) Performance evaluation samples
(1) Provided by Secretary
The Secretary shall ensure that performance evaluation samples are provided to any laboratory that has applied for accreditation under this chapter.
(2) Analysis by laboratory
A laboratory described in paragraph (1) shall analyze such performance evaluation samples and submit the results of such analysis to the Secretary, as provided for in section 138a of this title.
(3) Testing methods
Samples shall be tested by the laboratory according to methods specifically approved for such purpose by alternate methods of demonstrated adequacy or equivalence, as determined in regulations established under this chapter.
(b) Results of testing
(1) Submission of results
The laboratory shall submit the results of the tests conducted under subsection (a) to the Secretary on forms provided by the Secretary, on or before the date determined by the Secretary.
(2) Evaluation of tests
The Secretary shall evaluate the results of such tests achieved by the laboratory and shall determine whether such laboratory is capable of undertaking an accurate analysis of chemical residues in agricultural products.
(c) Review of accreditation
The Secretary shall ensure that performance evaluation samples for analysis are provided to laboratories accredited under this chapter not less than two times a year.
(Pub. L. 101–624, title XIII, §1324, Nov. 28, 1990, 104 Stat. 3564.)
§138d. Application
(a) Contents of application
An application for accreditation under this chapter shall be prepared and submitted to the Secretary and shall include—
(1) the name and address of the laboratory;
(2) the name and address of the owners and managers of such laboratory;
(3) a statement concerning the type of analysis the laboratory intends to conduct;
(4) a brief history of the laboratory and its previous operations; and
(5) such other information as may be required by the Secretary.
(b) Restrictions on submission of application
A laboratory that has been denied, or has lost, accreditation under this chapter shall not reapply for accreditation until the expiration of at least 6 months after such denial or loss of accreditation. Corrective actions taken by the laboratory to address deficiencies upon which the denial or loss of accreditation was based must accompany the reapplication.
(Pub. L. 101–624, title XIII, §1325, Nov. 28, 1990, 104 Stat. 3564.)
§138e. Reporting
(a) In general
Each laboratory or individual that performs, brokers, or otherwise arranges for the performance of a pesticide chemical analysis of food shall prepare and submit a report, simultaneously to the Secretary, the Secretary of Health and Human Services, and to the owner of such food, that shall contain any finding of pesticide chemical residues in such food—
(1) for which no chemical residue tolerance or exemption has been established;
(2) that is in excess of residue tolerances; or
(3) for which the chemical residue tolerance has been revoked or the chemical residue is otherwise not permitted by the Environmental Protection Agency.
(b) Timing of report
A laboratory shall submit the report required under subsection (a) to the Secretary, the Secretary of Health and Human Services, and the owner of such food as soon as practicable after the completion of the analysis of such food.
(c) Guidelines
The Secretary shall adopt standardized reporting guidelines to be applied to laboratories under this section and shall provide such guidelines to laboratories accredited under this chapter, as well as other sources of information regarding applicable pesticide chemical tolerances.
(Pub. L. 101–624, title XIII, §1326, Nov. 28, 1990, 104 Stat. 3565.)
§138f. Fees
(a) In general
At the time that an application for accreditation is received by the Secretary and annually thereafter, a laboratory seeking accreditation by the Secretary under the authority of this chapter, the Federal Meat Inspection Act (21 U.S.C. 601 et seq.), or the Poultry Products Inspection Act (21 U.S.C. 451 et seq.) shall pay to the Secretary a nonrefundable accreditation fee. All fees collected by the Secretary shall be credited to the account from which the expenses of the laboratory accreditation program are paid and, subject to subsection (e), shall be available immediately and remain available until expended to pay the expenses of the laboratory accreditation program.
(b) Amount of fee
The fee required under this section shall be established by the Secretary in an amount that will offset the cost of the laboratory accreditation programs administered by the Secretary under the statutory authorities set forth in subsection (a).
(c) Reimbursement of expenses
Each laboratory that is accredited under a statutory authority set forth in subsection (a) or that has applied for accreditation under such authority shall reimburse the Secretary for reasonable travel and other expenses necessary to perform onsite inspections of the laboratory.
(d) Adjustment of fees
The Secretary may, on an annual basis, adjust the fees imposed under this section as necessary to support the full costs of the laboratory accreditation programs carried out under the statutory authorities set forth in subsection (a).
(e) Appropriations prerequisite
No fees collected under this section may be used to offset the cost of laboratory accreditation without appropriations made under subsection (f).
(f) Authorization of appropriations
There are authorized to be appropriated each fiscal year such sums as may be necessary for laboratory accreditation services under this section.
(Pub. L. 101–624, title XIII, §1327, Nov. 28, 1990, 104 Stat. 3565; Pub. L. 102–237, title X, §1017, Dec. 13, 1991, 105 Stat. 1904.)
Editorial Notes
References in Text
The Federal Meat Inspection Act, referred to in subsec. (a), is titles I to V of act Mar. 4, 1907, ch. 2907, as added Pub. L. 90–201, Dec. 15, 1967, 81 Stat. 584, and Pub. L. 110–246, title XI, §11015(a), June 18, 2008, 122 Stat. 2124, which are classified generally to subchapters I to IV–A (§601 et seq.) of chapter 12 of Title 21, Food and Drugs. For complete classification of this Act to the Code, see Short Title note set out under section 601 of Title 21 and Tables.
The Poultry Products Inspection Act, referred to in subsec. (a), is Pub. L. 85–172, Aug. 28, 1957, 71 Stat. 441, which is classified generally to chapter 10 (§451 et seq.) of Title 21. For complete classification of this Act to the Code, see Short Title note set out under section 451 of Title 21 and Tables.
Amendments
1991—Pub. L. 102–237 amended section generally, in subsec. (a), inserting provisions relating to Federal Meat Inspection Act and Poultry Products Inspection Act and provisions relating to crediting and availability of fees, in subsec. (b), substituting provisions relating to fee under this section for provisions relating to fee under subsec. (a) of this section, and provisions relating to laboratory accreditation programs administered by Secretary under statutory authorities set forth in subsec. (a) of this section for provisions relating to program established under this chapter, in subsec. (c), substituting provisions relating to statutory authority set forth in subsec. (a) of this section for provisions relating to this chapter, in subsec. (d), substituting provisions relating to laboratory accreditation programs under statutory authority set forth in subsec. (a) of this section for provisions relating to program established under this chapter, and adding subsecs. (e) and (f).
§138g. Public disclosure
The results of the evaluations of laboratories conducted by the Secretary under this chapter shall be made available to the Secretary of Health and Human Services and to the public on request.
(Pub. L. 101–624, title XIII, §1328, Nov. 28, 1990, 104 Stat. 3565.)
§138h. Regulations
The Secretary shall promulgate regulations to carry out this chapter.
(Pub. L. 101–624, title XIII, §1329, Nov. 28, 1990, 104 Stat. 3565.)
§138i. Effect of other laws
Nothing in this chapter shall alter the authority of the Secretary of Health and Human Services under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.).
(Pub. L. 101–624, title XIII, §1330, Nov. 28, 1990, 104 Stat. 3565.)
Editorial Notes
References in Text
The Federal Food, Drug, and Cosmetic Act, referred to in text, is act June 25, 1938, ch. 675, 52 Stat. 1040, 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.
CHAPTER 7—INSECT PESTS GENERALLY
§§141 to 144. Repealed. Pub. L. 85–36, title I, §111, May 23, 1957, 71 Stat. 35
Sections were from act Mar. 3, 1905, ch. 1501, §§1–4, 33 Stat. 1269. See chapter 7B of this title.
Section 141 prohibited transportation or removal of insect pests.
Section 142 related to punishment for mailing parcels, etc., containing insect pests.
Section 143 related to regulations for mailing, transportation, etc., of insect pests for scientific purposes.
Section 144, amended Sept. 3, 1954, ch. 1263, §16, 68 Stat. 1232, related to punishment for unlawful transportation or removal of insect pests.
§145. Repealed. Pub. L. 94–231, §2, Mar. 15, 1976, 90 Stat. 216
Section, act Oct. 6, 1917, ch. 79, §1, 40 Stat. 374, provided for cooperation with Mexico and adjacent States in extermination of pink bollworm infestations in Mexico and related operations.
§§146, 147. Omitted
Editorial Notes
Codification
Section 146, act Feb. 9, 1927, ch. 90, 44 Stat. 1065, authorized an appropriation of $10,000,000 to eradicate or control European corn borer.
Section 147, act May 24, 1928, ch. 734, 45 Stat. 734, authorized an additional appropriation of $7,000,000 to eradicate or control European corn borer.
§§147a, 147b. Transferred
Editorial Notes
Codification
Section 147a, acts Sept. 21, 1944, ch. 412, title I, §102, 58 Stat. 735, as amended, which related to fees for inspection of plants for exporting or transiting, was transferred to section 7759 of this title.
Section 147b, Pub. L. 97–46, §1, Sept. 25, 1981, 95 Stat. 953, as amended, which related to transfer of funds for emergency arrest of animal or poultry diseases, was transferred to section 129a of Title 21, Food and Drugs, and was subsequently repealed by Pub. L. 107–171, title X, §10418(a)(1), May 13, 2002, 116 Stat. 507.
§§148, 148a. Repealed. Pub. L. 106-224, title IV, §438(a)(6), June 20, 2000, 114 Stat. 454
Section 148, acts Apr. 6, 1937, ch. 69, 50 Stat. 57; May 9, 1938, ch. 192, 52 Stat. 344; Aug. 13, 1954, ch. 731, 68 Stat. 717, related to control of incipient or emergency outbreaks of insect pests and plant diseases.
Section 148a, act Apr. 6, 1937, ch. 69, §2, as added May 9, 1938, ch. 192, 52 Stat. 344, related to availability of appropriated money for personnel, general administration, material and equipment, and other necessary expenses.
§148b. Repealed. Oct. 10, 1940, ch. 851, §4, 54 Stat. 1111
Section, act Apr. 6, 1937, ch. 69, §3, as added May 9, 1938, ch. 192, 52 Stat. 344, related to procurement of materials and equipment for the control of insect pests and plant diseases.
§148c to 148e. Repealed. Pub. L. 106-224, title IV, §438(a)(6), June 20, 2000, 114 Stat. 454
Section 148c, act Apr. 6, 1937, ch. 69, §4, as added May 9, 1938, ch. 192, 52 Stat. 344, related to cooperation of States in control of insect pests and plant diseases.
Section 148d, act Apr. 6, 1937, ch. 69, §5, as added May 9, 1938, ch. 192, 52 Stat. 344, prohibited use of appropriations to pay cost or value of injured or destroyed animals, crops, or other property.
Section 148e, act Apr. 6, 1937, ch. 69, §6, as added May 9, 1938, ch. 192, 52 Stat. 344, authorized appropriations to carry out provisions of sections 148 to 148e of this title.
§148f. Repealed. Pub. L. 106–224, title IV, §438(a)(9), June 20, 2000, 114 Stat. 454
Section, Pub. L. 99–198, title XVII, §1773, Dec. 23, 1985, 99 Stat. 1658, related to control of grasshoppers and Mormon Crickets on Federal lands. See section 7717 of this title.
§149. Repealed. Pub. L. 106–224, title IV, §438(a)(5), June 20, 2000, 114 Stat. 454
Section, acts Jan. 31, 1942, ch. 31, 56 Stat. 40; Pub. L. 85–36, title I, §110, May 23, 1957, 71 Stat. 34; Pub. L. 97–461, §3, Jan. 12, 1983, 96 Stat. 2524; Pub. L. 103–465, title IV, §431(b), Dec. 8, 1994, 108 Stat. 4967, related to inspection, cleaning, and disinfection of vehicles and materials entering into the United States from Mexico.
CHAPTER 7A—GOLDEN NEMATODE
§§150 to 150g. Repealed. Pub. L. 106–224, title IV, §438(a)(8), June 20, 2000, 114 Stat. 454
Section 150, act June 15, 1948, ch. 471, §1, 62 Stat. 442, set forth governmental policy for protection of potatoes and tomatoes from golden nematode.
Section 150a, act June 15, 1948, ch. 471, §2, 62 Stat. 443, authorized Secretary of Agriculture to carry out operations to eradicate, suppress, control, or prevent spread of golden nematode.
Section 150b, act June 15, 1948, ch. 471, §3, 62 Stat. 443, related to inspections, quarantines, restrictions on planting, crop destruction, and compensation of growers.
Section 150c, act June 15, 1948, ch. 471, §4, 62 Stat. 443, made expenditure of funds discretionary with Secretary.
Section 150d, act June 15, 1948, ch. 471, §5, 62 Stat. 443, made State legislative action prerequisite to restrictions on or destruction of crops.
Section 150e, act June 15, 1948, ch. 471, §6, 62 Stat. 443, related to determination of amount of compensation paid to growers.
Section 150f, act June 15, 1948, ch. 471, §7, 62 Stat. 443, authorized expenditures, including employment of personnel, printing and binding, and purchase of vehicles.
Section 150g, act June 15, 1948, ch. 471, §8, 62 Stat. 443, directed that chapter be construed to supplement existing legislation.
Statutory Notes and Related Subsidiaries
Short Title
Act June 15, 1948, ch. 471, §9, 62 Stat. 443, provided that act June 15, 1948, enacting this chapter, could be cited as the "Golden Nematode Act", prior to repeal by Pub. L. 106–224, title IV, §438(a)(8), June 20, 2000, 114 Stat. 454.
CHAPTER 7B—PLANT PESTS
§§150aa to 150jj. Repealed. Pub. L. 106–224, title IV, §438(a)(2), June 20, 2000, 114 Stat. 454
Section 150aa, Pub. L. 85–36, title I, §102, May 23, 1957, 71 Stat. 31, defined terms as used in this chapter.
Section 150bb, Pub. L. 85–36, title I, §103, May 23, 1957, 71 Stat. 32; Pub. L. 97–461, §1(a), Jan. 12, 1983, 96 Stat. 2523; Pub. L. 100–449, title III, §301(f)(1), Sept. 28, 1988, 102 Stat. 1868; Pub. L. 103–465, title IV, §431(c)(1), Dec. 8, 1994, 108 Stat. 4967, prohibited movement of plant pests into or through the United States or interstate.
Section 150cc, Pub. L. 85–36, title I, §104, May 23, 1957, 71 Stat. 32; Pub. L. 100–449, title III, §301(f)(2), Sept. 28, 1988, 102 Stat. 1869; Pub. L. 103–465, title IV, §431(c)(2), Dec. 8, 1994, 108 Stat. 4967, prohibited mailing of plant pests.
Section 150dd, Pub. L. 85–36, title I, §105, May 23, 1957, 71 Stat. 32; Pub. L. 97–98, title XI, §1119(1), Dec. 22, 1981, 95 Stat. 1272, authorized emergency measures to prevent dissemination of plant pests.
Section 150ee, Pub. L. 85–36, title I, §106, May 23, 1957, 71 Stat. 33, authorized promulgation of regulations requiring inspection of products and articles.
Section 150ff, Pub. L. 85–36, title I, §107, May 23, 1957, 71 Stat. 34; Pub. L. 90–578, title IV, §402(b)(2), Oct. 17, 1968, 82 Stat. 1118; Pub. L. 97–98, title XI, §1119(2), Dec. 22, 1981, 95 Stat. 1273; Pub. L. 101–650, title III, §321, Dec. 1, 1990, 104 Stat. 5117, authorized warrantless stops and inspections and entries with warrants for inspections and seizures.
Section 150gg, Pub. L. 85–36, title I, §108, May 23, 1957, 71 Stat. 34; Pub. L. 97–461, §1(b), Jan. 12, 1983, 96 Stat. 2523, set forth criminal and civil penalties.
Section 150hh, Pub. L. 85–36, title I, §109, May 23, 1957, 71 Stat. 34, related to separability of provisions.
Section 150ii, Pub. L. 85–36, title I, §111, May 23, 1957, 71 Stat. 34, provided that authority conferred by this chapter was to be in addition to that conferred by other statutes.
Section 150jj, Pub. L. 85–36, title I, §111, May 23, 1957, 71 Stat. 35, provided that nothing in this chapter was to amend or repeal provisions of the Plant Quarantine Act.
Statutory Notes and Related Subsidiaries
Short Title
Pub. L. 85–36, title I, §101, May 23, 1957, 71 Stat. 31, provided that title I of Pub. L. 85–36, which enacted this chapter and provisions set out as a note under section 147a of this title, amended section 149 of this title, and repealed sections 141 to 144 and 441 of this title, could be cited as the "Federal Plant Pest Act", prior to repeal by Pub. L. 106–224, title IV, §438(a)(2), June 20, 2000, 114 Stat. 454.
CHAPTER 8—NURSERY STOCK AND OTHER PLANTS AND PLANT PRODUCTS
§§151 to 154. Repealed. Pub. L. 106–224, title IV, §438(a)(1), June 20, 2000, 114 Stat. 454
Section 151, act Aug. 20, 1912, ch. 308, §11, 37 Stat. 319, defined "person" as used in this chapter.
Section 152, act Aug. 20, 1912, ch. 308, §6, 37 Stat. 317, defined "nursery stock" for purpose of this chapter.
Section 153, act Aug. 20, 1912, ch. 308, §11, 37 Stat. 319, related to liability of principal for act or omission of agent.
Section 154, acts Aug. 20, 1912, ch. 308, §1, 37 Stat. 315; July 31, 1947, ch. 405, 61 Stat. 680; Pub. L. 100–449, title III, §301(f)(3)(A), Sept. 28, 1988, 102 Stat. 1869; Pub. L. 103–465, title IV, §431(d)(1), Dec. 8, 1994, 108 Stat. 4967, required that movement of nursery stock into or through the United States be made in accordance with regulations to prevent dissemination of plant pests, plant diseases, or insect pests.
Statutory Notes and Related Subsidiaries
Effective Date
Section 14 of act Aug. 20, 1912, provided that act Aug. 20, 1912, enacting this chapter, was effective Oct. 1, 1912, except as otherwise provided, prior to repeal by Pub. L. 106–224, title IV, §438(a)(1), June 20, 2000, 114 Stat. 454.
§155. Omitted
Editorial Notes
Codification
Section, act Mar. 4, 1913, ch. 145, §1 [part], 37 Stat. 854, provided that any class of nursery stock or of any other class of plants, fruits, vegetables, roots, bulbs, seeds, or other plant products of which the importation could be forbidden from any country or locality under the provisions of section 160 of this title could be imported for experimental or scientific purposes by the Department of Agriculture.
§§156 to 161. Repealed. Pub. L. 106–224, title IV, §438(a)(1), June 20, 2000, 114 Stat. 454
Section 156, acts Aug. 20, 1912, ch. 308, §2, 37 Stat. 316; Pub. L. 100–449, title III, §301(f)(3)(B), Sept. 28, 1988, 102 Stat. 1869; Pub. L. 103–465, title IV, §431(d)(2), Dec. 8, 1994, 108 Stat. 4968, required that Secretary of Agriculture be notified of arrival of nursery stock at port of entry, prohibited forwarding without notification, and provided for inspection before shipment.
Section 157, act Aug. 20, 1912, ch. 308, §3, 37 Stat. 316, set forth marking requirements for entry of nursery stock into United States.
Section 158, act Aug. 20, 1912, ch. 308, §4, 37 Stat. 316, related to marking and inspection of imported nursery stock for interstate shipment.
Section 159, acts Aug. 20, 1912, ch. 308, §5, 37 Stat. 316; Pub. L. 97–432, §1(1), Jan. 8, 1983, 96 Stat. 2276, related to regulation of importation of plant products other than nursery stock.
Section 160, acts Aug. 20, 1912, ch. 308, §7, 37 Stat. 317; Pub. L. 97–432, §1(2), Jan. 8, 1983, 96 Stat. 2276, authorized regulations prohibiting importation of nursery stock or other plant products to prevent introduction into United States of any tree, plant or fruit disease or any injurious insect.
Section 161, acts Aug. 20, 1912, ch. 308, §8, 37 Stat. 318; Mar. 4, 1917, ch. 179, 39 Stat. 1165; Apr. 13, 1926, ch. 135, 44 Stat. 250; Pub. L. 95–439, §4, Oct. 10, 1978, 92 Stat. 1062; Pub. L. 97–432, §1(3), Jan. 8, 1983, 96 Stat. 2276; Pub. L. 104–127, title IX, §911, Apr. 4, 1996, 110 Stat. 1185, authorized quarantine of any State, territory, or district of the United States in order to prevent the spread of a dangerous plant disease or insect infestation.
§161a. Omitted
Editorial Notes
Codification
Section was from the Department of Agriculture Appropriation Act, 1945, act June 28, 1944, ch. 296, 58 Stat. 440, related to disposition of moneys from inspection and certification of domestic plants and plant products for export, and was not repeated in subsequent appropriation acts. Similar provisions were contained in prior appropriation acts as follows:
July 12, 1943, ch. 215, 57 Stat. 408.
July 22, 1942, ch. 516, 56 Stat. 686.
§§162 to 164a. Repealed. Pub. L. 106–224, title IV, §438(a)(1), June 20, 2000, 114 Stat. 454
Section 162, act Aug. 20, 1912, ch. 308, §9, 37 Stat. 318, authorized rules and regulations as necessary for carrying out the purposes of this chapter.
Section 163, acts Aug. 20, 1912, ch. 308, §10, 37 Stat. 318; Pub. L. 97–461, §2, Jan. 12, 1983, 96 Stat. 2523, set forth penalties for violations of provisions of this chapter or regulations promulgated thereunder.
Section 164, act Aug. 20, 1912, ch. 308, §10, 37 Stat. 318, set forth duty of United States attorneys to prosecute violations of this chapter.
Section 164a, act Aug. 20, 1912, ch. 308, §10, as added May 1, 1928, ch. 462, 45 Stat. 468, authorized search and seizure of nursery stock and plant products by Department of Agriculture employees.
§165. Repealed. Pub. L. 88–448, title IV, §402(a)(13), Aug. 19, 1964, 78 Stat. 493
Section, act Aug. 20, 1912, ch. 308, §12, 37 Stat. 319, related to appointment of members of a Federal Horticultural Board from among employees of Department of Agriculture.
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective on first day of first month which begins later than ninetieth day following Aug. 19, 1964, see section 403 of Pub. L. 88–448.
§165a. Omitted
Editorial Notes
Codification
Section, act May 16, 1928, ch. 572, 45 Stat. 565, provided that the functions of the Federal Horticultural Board should devolve upon and be exercised by the Plant Quarantine and Control Administration. Said act also created an Advisory Federal Plant Quarantine Board which was abolished by act Mar. 3, 1933, ch. 203, 47 Stat. 1463. Appropriations to enable the Secretary of Agriculture to carry into effect the provisions of this chapter, which in prior appropriation acts had been made to the Plant Quarantine and Control Administration, were made to the Bureau of Plant Quarantine by the appropriation act of July 7, 1932, ch. 443, 47 Stat. 640, and to the Bureau of Entomology and Plant Quarantine by the appropriation act of Mar. 26, 1934, ch. 89, 48 Stat. 486, and subsequent appropriation acts.
§166. Transferred
Editorial Notes
Codification
Section, act Mar. 4, 1915, ch. 144, 38 Stat. 1113, as amended, which related to transmission by the Postal Service of packages containing plants or plant products for States inspection, was transferred to section 7760 of this title.
§167. Repealed. Pub. L. 106–224, title IV, §438(a)(1), June 20, 2000, 114 Stat. 454
Section, act Aug. 20, 1912, ch. 308, §15, as added May 31, 1920, ch. 217, 41 Stat. 726; amended May 16, 1928, ch. 572, 45 Stat. 565; July 7, 1932, ch. 443, 47 Stat. 640; Mar. 26, 1934, ch. 89, 48 Stat. 486; Apr. 1, 1942, ch. 207, §§1, 4, 56 Stat. 190, 192; Pub. L. 88–60, §§1, 7, July 8, 1963, 77 Stat. 77, 78; Pub. L. 91–358, title I, §155(a), July 29, 1970, 84 Stat. 570, related to rules and regulations to prevent dissemination of dangerous plant diseases and insect infections and infestations in the District of Columbia.
CHAPTER 8A—RUBBER AND OTHER CRITICAL AGRICULTURAL MATERIALS
SUBCHAPTER I—GENERAL PROVISIONS
SUBCHAPTER II—CRITICAL AGRICULTURAL MATERIALS
SUBCHAPTER I—GENERAL PROVISIONS
§171. Program for development of guayule and other rubber-bearing plants
The Secretary of Agriculture (hereinafter called the "Secretary") is authorized—
(1) To acquire by purchase, license, or other agreement, the right to operate under processes or patents relating to the growing and harvesting of guayule or the extraction of rubber therefrom, and such properties, processes, records, and data as are necessary to such operation, including but not limited to any such rights owned or controlled by the Intercontinental Rubber Company, or any of its subsidiaries, and all equipment, materials, structures, factories, real property, seed, seedlings, growing shrub, and other facilities, patents and processes of the Intercontinental Rubber Company, or any of its subsidiaries, located in California, and for such rights, properties, and facilities of the Intercontinental Rubber Company or any of its subsidiaries, the Secretary is authorized to pay not to exceed $2,000,000;
(2) To plant, or contract for the planting of, not in excess of five hundred thousand acres of guayule in areas in the Western Hemisphere where the best growth and yields may be expected in order to maintain a nucleus planting of guayule to serve as a domestic source of crude rubber as well as of planting material for use in further expanding guayule planting to meet emergency needs of the United States for crude rubber; to establish and maintain nurseries to provide seedlings for field plants; and to purchase necessary equipment, facilities, land for nurseries and administrative sites and water rights;
(3) To acquire by lease, or other agreement, for not exceeding ten years, rights to land for the purpose of making plantings of guayule; to acquire water rights; to erect necessary buildings on leased land where suitable land cannot be purchased; to make surveys, directly or through appropriate Government agencies, of areas in the Western Hemisphere where guayule might be grown; and to establish and maintain records indicating areas to which guayule cultivation could be extended for emergency production;
(4) To construct or operate, or to contract for the operation of, factories for the extraction of rubber from guayule, and from Chrysothamnus, commonly known as rabbit brush; to purchase guayule shrub; and to purchase, operate, and maintain equipment for the harvesting, storing, transporting, and complete processing of guayule, and Chrysothamnus, commonly known as rabbit brush, and to purchase land as sites for processing plants;
(5) To conduct studies, in which he may cooperate with any other public or private agency, designed to increase the yield of guayule by breeding or by selection, and to improve planting methods; to make surveys of areas suitable for cultivating guayule; to make experimental plantings; and to conduct agronomic tests;
(6) To conduct tests, in which he may cooperate with any other public or private agency, to determine the qualities of rubber obtained from guayule and to determine the most favorable methods of compounding and using guayule in rubber manufacturing processes;
(7) To improve methods of processing guayule shrubs and rubber and to obtain and hold patents on such new processes;
(8) To sell guayule or rubber processed from guayule and to use funds so obtained in replanting and maintaining an area not in excess of five hundred thousand acres of guayule inside the Western Hemisphere; and
(9) To exercise with respect to rubber-bearing plants other than guayule the same powers as are granted in the foregoing provisions of this section with respect to guayule.
(Mar. 5, 1942, ch. 140, §1, 56 Stat. 126; Oct. 20, 1942, ch. 617, §§1–4, 56 Stat. 796, 797.)
Editorial Notes
Amendments
1942—Par. (2). Act Oct. 20, 1942, §1, increased acreage from 75,000 to 500,000 and inserted reference to land for administrative sites and water rights.
Par. (3). Act Oct. 20, 1942, §2, inserted "to acquire water rights; to erect necessary buildings on leased land where suitable land cannot be purchased;".
Par. (4). Act Oct. 20, 1942, §3, inserted "to purchase guayule shrub;".
Par. (8). Act Oct. 20, 1942, §4, substituted "not in excess of five hundred" for "of seventy-five".
Statutory Notes and Related Subsidiaries
Additional Acreage Authorized
Act Oct. 26, 1942, ch. 629, title II, 56 Stat. 1002, provided that: "The Secretary of Agriculture, in connection with the appropriations herein and heretofore made for such project, is authorized to plant, or contract for the planting of, not to exceed twenty-five thousand acres of guayule in areas in the Western Hemisphere in addition to the acreage permitted under the provisions of paragraph (1), section 1 of the act of March 5, 1942 (Public Law 473) [par. (1) of this section]."
§172. Authorization of Secretary to appoint employees; delegation of powers; cooperation with other agencies; allotment of funds; leases of facilities and disposal of water
(a) The Secretary is authorized to appoint such employees, including citizens of other countries, as may be necessary for carrying out the provisions of sections 171 to 173 of this title. Such appointments may be made without regard to the provisions of the civil-service laws. (Sections 321, 322, 324, and 325a of title 40 1 shall not apply to any nursery, planting, cultivating or harvesting operations conducted pursuant to sections 171 to 173 of this title.) All appointments so made by the Secretary shall be made only on the basis of merit and efficiency.
(b) The Secretary may delegate any of the powers and duties conferred on him by sections 171 to 173 of this title to any agency or bureau of the Department of Agriculture.
(c) The Secretary, with the consent of any board, commission, independent establishment, corporation, or executive department of the Government, including any field service thereof, may avail himself of the use of information, services, facilities, officers and employees thereof, in carrying out the provisions of sections 171 to 173 of this title.
(d) The Secretary may allot to bureaus and offices of the Department of Agriculture, or may transfer to such other agencies of the State and Federal Governments as may be requested by him to assist in carrying out sections 171 to 173 of this title, any funds made available to him under said sections.
(e) In carrying out the provisions of sections 171 to 173 of this title the Secretary shall have all of the authority conferred upon him by section 502 of title 16.
(f) The Secretary may lease at reasonable rentals structures erected by the Government with essential facilities for such periods as such structures and facilities are not required for the purposes of sections 171 to 173 of this title; and any part of land or structures with essential facilities acquired by lease, deed, or other agreement pursuant to said sections, which are not required or suitable for the purposes of said sections during the period the United States is entitled to possession thereof may be leased or subleased at a reasonable rental; and any surplus water controlled by the United States on land owned or leased by the United States for the purposes of said sections may be disposed of at reasonable rates.
(Mar. 5, 1942, ch. 140, §2, 56 Stat. 127; Oct. 20, 1942, ch. 617, §§5–7, 56 Stat. 797.)
Editorial Notes
References in Text
Sections 321, 322, 324, and 325a of title 40, referred to in subsec. (a), mean sections 321, 322, 324, and 325a of former title 40 which were repealed by Pub. L. 87–581, title II, §203, Aug. 13, 1962, 76 Stat. 360. See sections 3702, 3703, and 3708 of Title 40, Public Buildings, Property, and Works.
Codification
In the second sentence of subsec. (a), the words "and the compensation of the persons so appointed may be fixed without regard to the provisions of the Classification Act of 1923, as amended" were omitted as obsolete. Sections 1202 and 1204 of the Classification Act of 1949, 63 Stat. 972, 973, repealed the 1923 Act and all laws or parts of laws inconsistent with the 1949 Act. While section 1106(a) of the 1949 Act provided that references in other laws to the 1923 Act should be held and considered to mean the 1949 Act, it did not have the effect of continuing the exceptions contained in this subsection because of section 1106(b) which provided that the application of the 1949 Act of any position, officer, or employee shall not be affected by section 1106(a). The Classification Act of 1949 was repealed by Act Sept. 6, 1966, Pub. L. 89–554, §8(a), 80 Stat. 632 (of which section 1 revised and enacted Title 5, U.S.C., into law). Section 5102 of Title 5 contains the applicability provisions of the 1949 Act, and section 5103 of Title 5 authorizes the Office of Personnel Management to determine the applicability to specific positions and employees.
Amendments
1942—Subsec. (a). Act Oct. 20, 1942, §§5, 7, substituted "other countries" for "countries in the Western Hemisphere" and inserted sentence relating to inapplicability of certain sections of title 40.
Subsecs. (e), (f). Act Oct. 20, 1942, §6, added subsecs. (e) and (f).
Executive Documents
Transfer of Functions
Functions of all officers, agencies, and employees of Department of Agriculture transferred, with certain exceptions, to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
1 See References in Text note below.
§173. Authorization of appropriations
There are authorized to be appropriated such amounts as may be necessary to carry out the provisions of sections 171 to 173 of this title. Any amounts so appropriated, and any funds received by the Secretary under said sections, shall remain permanently available for the purposes of said sections without regard to the provisions of any other laws relating to the availability and disposition of appropriated funds and the disposition of funds collected by officers or agencies of the United States.
(Mar. 5, 1942, ch. 140, §3, 56 Stat. 128.)
§174. Omitted
Editorial Notes
Codification
Section was from the Department of Agriculture Appropriation Act, 1946, act July 5, 1945, ch. 271, title I, 59 Stat. 423, provided for the disposition of proceeds from the sale of guayule and other rubber-bearing plants, and was not repeated in subsequent appropriation acts. Similar provisions were contained in prior appropriation acts as follows:
May 5, 1945, ch. 109, 59 Stat. 152.
June 28, 1944, ch. 296, 58 Stat. 447.
July 12, 1943, ch. 215, 57 Stat. 415.
July 2, 1942, ch. 476, title I, 56 Stat. 597.
Apr. 28, 1942, ch. 247, title III, 56 Stat. 240.
§175. Lease or sublease of unsuitable lands; disposal of water supply
Subject to conditions prescribed by the Secretary of Agriculture, any part of the land acquired by lease, deed, or other agreement pursuant to sections 171 to 173 of this title, which is not required or suitable for the purposes of said sections may be leased or subleased at a reasonable rental during the period the United States is entitled to possession thereof; and any surplus water supplies controlled by the United States on such land may be disposed of at reasonable rates.
(July 2, 1942, ch. 476, title I, 56 Stat. 597.)
§176. Sale of guayule shrub to Reconstruction Finance Corporation
Guayule shrub may be sold to the Reconstruction Finance Corporation at a price reflecting the net realization from the sale of the rubber recovered from such shrub in mills operated by said Corporation after deducting the cost of milling and amortization of the cost of mills constructed for the purpose by said Corporation.
(June 30, 1945, ch. 215, §1, 59 Stat. 310; July 5, 1945, ch. 271, title I, 59 Stat. 423.)
Statutory Notes and Related Subsidiaries
Transfer of Functions
Rubber Reserve Company dissolved and functions transferred to Reconstruction Finance Corporation by Joint Res. June 30, 1945, eff. July 1, 1945.
Executive Documents
Abolition of Reconstruction Finance Corporation
Section 6(a) of 1957 Reorg. Plan No. 1, eff. June 30, 1957, 22 F.R. 4633, 71 Stat. 649, set out as a note under section 601 of Title 15, Commerce and Trade, abolished Reconstruction Finance Corporation.
SUBCHAPTER II—CRITICAL AGRICULTURAL MATERIALS
§178. Congressional findings and declaration of policy
(a)(1) Congress recognizes that natural latex rubber is a commodity of vital importance to the economy, the defense, and the general well-being of the Nation. The United States is totally dependent upon foreign sources for its supplies of natural (Hevea) latex, which total about one million tons per year. Synthetic rubber, manufactured from petroleum feedstocks, cannot be substituted for natural rubber.
(2) Congress further recognizes that certain plant species of the genus Parthenium (Guayule), native to Texas and the Republic of Mexico, as well as other plants, are known to contain commercial quantities of extractable rubber. During World War II, through research carried out by the Secretary of Agriculture in the Emergency Rubber Project, the United States demonstrated that Parthenium latex is a promising and realistic substitute for Hevea latex.
(3) Congress further recognizes that additional research and development are needed, especially into methods for increasing latex yields, before commercialization of native Parthenium latex or other hydrocarbon-containing plants by private industry is feasible.
(4) Congress further recognizes that the development of a domestic natural rubber industry, based on Parthenium and other hydrocarbon-containing plants, would not only relieve the Nation's dependence upon foreign latex sources but also convey substantial economic benefits to people living in arid and semiarid regions of the United States. Such an industry would comprise the agricultural production of the hydrocarbon-containing plants and the development of commercial processing and manufacturing facilities to extract the latex and other products.
(5) Congress further recognizes that ongoing research into the development and commercialization of native latex has been conducted by the Department of Agriculture, the Department of Commerce, the National Science Foundation, and other public as well as private and industrial research groups, and that these research efforts should be continued and expanded.
(b) In addition, Congress recognizes that the development of a domestic industry or industries for the production and manufacture from native agricultural crops of products other than rubber which are of strategic and industrial importance but for which the Nation is now dependent upon foreign sources, would benefit the economy, the defense, and the general well-being of the Nation, and that additional research efforts in this area should be undertaken or continued and expanded.
(c) It is therefore the policy of the United States to provide for the development and demonstration of economically feasible means of culturing and manufacturing Parthenium and other hydrocarbon-containing plants, along with other native agricultural crops, for the production of critical agricultural materials to benefit the Nation and promote economic development.
(Pub. L. 95–592, §2, Nov. 4, 1978, 92 Stat. 2529; Pub. L. 98–284, §2, May 16, 1984, 98 Stat. 181.)
Editorial Notes
Amendments
1984—Subsec. (a)(1). Pub. L. 98–284, §2(1), redesignated existing provisions of subsec. (a) as par. (1).
Subsec. (a)(2) to (4). Pub. L. 98–284, §2(2), redesignated subsecs. (b), (c), and (d) as pars. (2), (3), and (4), respectively, of subsec. (a).
Subsec. (a)(5). Pub. L. 98–284, §2(2), (3), redesignated subsec. (e) as par. (5) of subsec. (a), and in par. (5), as so redesignated, substituted "development and commercialization of native latex has been conducted by the Department of Agriculture, the Department of Commerce, the National Science Foundation, and other public as well as private and industrial research groups," for "commercialization of native latex has been conducted by the Department of Agriculture and by the Department of Commerce through the regional commissions".
Subsec. (b). Pub. L. 98–284, §2(4), added subsec. (b). Former subsec. (b) redesignated (a)(2).
Subsec. (c). Pub. L. 98–284, §2(4), added subsec. (c). Former subsec. (c) redesignated (a)(3).
Subsecs. (d) and (e). Pub. L. 98–284, §2(2), redesignated subsecs. (d) and (e) as (a)(4) and (a)(5), respectively.
Subsec. (f). Pub. L. 98–284, §2(4), struck out subsec. (f) which provided: "It is the policy of the Congress, therefore, to provide for the development and demonstration of economically feasible means of culturing and manufacturing Parthenium and other hydrocarbon-containing plants for the extraction of natural rubber and other products to benefit the Nation and promote economic development". See subsec. (c).
Statutory Notes and Related Subsidiaries
Short Title
Pub. L. 95–592, §1, Nov. 4, 1978, 92 Stat. 2529, as amended by Pub. L. 98–284, §1, May 16, 1984, 98 Stat. 181, provided: "That this Act [enacting this subchapter and amending section 1314f of this title] may be cited as the 'Critical Agricultural Materials Act'." As originally enacted Pub. L. 95–592 had been cited as the "Native Latex Commercialization and Economic Development Act of 1978".
§178a. Definitions
As used in this subchapter—
(a) The term "State" means each of the fifty States, the District of Columbia, and the Commonwealth of Puerto Rico.
(b) The term "Secretaries" means the Secretary of Agriculture and/or the Secretary of Commerce acting each separately or jointly.
(c) The term "commercialization" means the stage in the development or advancement of a technology at which point private enterprise is willing to invest in a full-scale production facility.
(d) The term "native" means hydrocarbon-containing plants and other agricultural crops of strategic and industrial importance which may be cultured in North America, especially plants which are members of the genus Parthenium known as Guayule.
(Pub. L. 95–592, §3, Nov. 4, 1978, 92 Stat. 2529; Pub. L. 98–284, §3, May 16, 1984, 98 Stat. 181.)
Editorial Notes
Amendments
1984—Subsec. (d). Pub. L. 98–284, §3(a), inserted "and other agricultural crops of strategic and industrial importance" and "plants which are".
Subsec. (e). Pub. L. 98–284, §3(b), struck out subsec. (e) which defined "Regional Commissions" as the Regional Action Planning Commissions established pursuant to title V of the Public Works and Economic Development Act of 1965.
§178b. Joint Commission on Research and Development of Critical Agricultural Materials
(a) Establishment; function
There is established a Joint Commission on Research and Development of Critical Agricultural Materials, hereinafter referred to as the Joint Commission. The function of the Joint Commission shall be to assist the Secretaries in carrying out the purposes of this subchapter.
(b) Membership
The Joint Commission shall consist of the following members: Three individuals designated by the Secretary of Agriculture from among the staff of the Department of Agriculture; three individuals designated by the Secretary of Commerce from among the staff of the Department of Commerce; a representative of the Bureau of Indian Affairs of the Department of the Interior; a representative of the National Science Foundation; a representative of the Department of State; a representative of the Department of Defense; and a representative of the Federal Emergency Management Agency. Each of the members of the Joint Commission shall be an individual who, on behalf of the Department or agency which such individual represents, is engaged in the support of research, development, demonstration, and commercialization activities involving native latex and the production of other critical agricultural materials from native agricultural crops.
(c) Chairman
The Joint Commission shall be headed by a Chairman who shall be selected by the Secretary of Agriculture from among the three individuals designated by the Secretary as members under subsection (b).
(d) Delegation of responsibilities to Joint Commission; transfer and use of appropriated funds
The Secretaries may delegate to the Joint Commission one or more of their responsibilities under this subchapter, and transfer to the Joint Commission funds appropriated to carry out the purposes of this subchapter as they deem appropriate to achieve the purposes of this subchapter, and the Joint Commission is authorized to carry out such functions and expend such funds to achieve the purposes of the subchapter.
(e) Duties
The Joint Commission shall—
(1) develop a plan establishing goals, timetables, and tasks to be undertaken in carrying out the purposes of this subchapter;
(2) establish broad policy for implementing the plan carrying out the purposes of this subchapter;
(3) establish criteria for evaluating and awarding contracts for research, development, and demonstration projects; and
(4) review and advise the Secretaries with respect to grants, contracts, and other project expenditures.
(f) Administrative support services
The Secretaries are authorized to provide without reimbursement such administrative support services, including the detail of staff personnel not to exceed a total of five persons from each Department, as the Joint Commission may need to carry out its functions.
(g) Advice of scientific, engineering and business communities
To the maximum extent possible, the Secretaries and the Joint Commission shall seek the advice of the scientific, engineering and business communities with respect to the activities carried out under this subchapter. The Secretaries and the Commission shall specifically seek the advice of persons with expertise in appropriate fields of agricultural research in land grant colleges and other universities, in State agricultural experiment stations, and in other appropriate organizations; and, persons with expertise in manufacturing and commerce involving rubber and other critical agricultural materials in private enterprise and other appropriate organizations.
(Pub. L. 95–592, §4, Nov. 4, 1978, 92 Stat. 2530; Pub. L. 98–284, §4, May 16, 1984, 98 Stat. 181; Pub. L. 104–127, title VIII, §881(a), Apr. 4, 1996, 110 Stat. 1175.)
Editorial Notes
Amendments
1996—Subsecs. (g), (h). Pub. L. 104–127 redesignated subsec. (h) as (g), and struck out former subsec. (g) which read as follows: "One year after November 4, 1978, and each year thereafter, the Joint Commission shall provide to the Congress a report on the implementation of the subchapter. Such report shall (1) recommend specific directions for further research, development, and other work, and (2) recommend funding levels for various elements of the overall project."
1984—Subsec. (a). Pub. L. 98–284, §4(a), substituted "Research and Development of Critical Agricultural Materials" for "Guayule Research and Commercialization".
Subsec. (b). Pub. L. 98–284, §4(b), struck out provision mandating that two of the designees of the Secretary of Commerce be Federal Cochairmen of Regional Commissions engaged in the support of native latex research, development, demonstration, or commercialization activities, inserted provisions for the appointment of a representative of the Department of State, a representative of the Department of Defense, and a representative of the Federal Emergency Management Agency, and inserted provisions that each of the members of the Joint Commission be an individual who, on behalf of the Department or agency which such individual represents, is engaged in the support of research, development, demonstration, and commercialization activities involving native latex and the production of other critical agricultural materials from native agricultural crops.
Subsec. (c). Pub. L. 98–284, §4(c), substituted "The Joint Commission shall be headed by a Chairman who shall be selected by the Secretary of Agriculture from among the three individuals designated by the Secretary as members under subsection (b)" for "The Joint Commission shall be headed by a Chairman. The Secretary of Agriculture shall designate one of the two members from his Department to serve as Joint Commission Chairman during the first two-year period following November 4, 1978, and the Secretary of Commerce shall designate one of the two members from his Department as Joint Commission Chairman during the second two-year period following November 4, 1978. And the same process of designating Joint Commission Chairmen shall be followed in ensuing years".
Subsec. (h). Pub. L. 98–284, §4(d), substituted "manufacturing and commerce involving rubber and other critical agricultural materials" for "rubber manufacturing and commerce".
Statutory Notes and Related Subsidiaries
Transfer of Functions
For transfer of all functions, personnel, assets, components, authorities, grant programs, and liabilities of the Federal Emergency Management Agency, including the functions of the Under Secretary for Federal Emergency Management relating thereto, to the Federal Emergency Management Agency, see section 315(a)(1) of Title 6, Domestic Security.
For transfer of functions, personnel, assets, and liabilities of the Federal Emergency Management Agency, including the functions of the Director of the Federal Emergency Management Agency relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see former section 313(1) and sections 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
§178c. Research and development program by Secretary of Agriculture
(a) Designation of Department as lead agency
The Department of Agriculture shall be the lead agency in carrying out this subchapter.
(b) Scope of program
The Secretary of Agriculture shall conduct, sponsor, promote, and coordinate basic and applied research, technology development, and technology transfer leading to effective and economical methods for large-scale culturing of plantations and the extraction of latex from Parthenium or other hydrocarbon-containing plants, and for the development of other critical agricultural materials from native agricultural crops having strategic and industrial importance. Such research shall include, but not be limited to—
(1) carrying out extensive seed collections from wild plants in Texas, Mexico, and other areas and borrowing or purchasing seeds from other sources;
(2) developing a stockpile of Parthenium seeds, such stockpile to be appropriately classified and stored at a suitable facility;
(3) accelerating present plant breeding, genetics, and selection programs for the purpose of improving and increasing latex yields, expanding insect and disease resistance, broadening the ranges of drought and cold resistance of the Parthenium plant, and providing a system of regional research trials for enhancing and increasing the supply of foundation seed for certified seed production;
(4) establishing a system of large-scale experimental plantings (aggregating ten thousand acres or more) to provide shrub for feedstock to process in the developmental rubber processing facility described in paragraph (7);
(5) carrying out specific studies on the effects of irrigation on plant growth and latex yield and survival potential;
(6) developing equipment needed to carry out nursery operations, planting, cultivating, harvesting, transporting the crop, and other necessary agricultural activities;
(7) accelerating the refinement of present extraction and processing technologies and future extraction technologies, including the development and construction of a developmental rubber processing facility for the extraction and production of test quantities of guayule natural rubber;
(8) establishing and maintaining a bank of all pertinent research data on native latex including extant United States Government publications and records from the emergency rubber project. Such data shall be made available to other Federal and State agencies and private persons who are interested or involved in native latex research, development, or manufacture; and
(9) studying the economic feasibility of developing other native agricultural crops (in addition to Parthenium and other hydrocarbon-containing plants, and including hemp (as defined in section 1639o of this title)) that would supply critical agricultural materials for strategic and industrial purposes, carrying out demonstration projects to promote the development or commercialization of such crops (including projects designed to expand domestic or foreign markets for such crops), and, to the extent appropriate, carrying out research activities with respect to such crops in the manner specified in paragraphs (1) through (8).
(c) Office of Critical Agricultural Materials
The Secretary of Agriculture shall establish within the Department of Agriculture an Office of Critical Agricultural Materials, as a central location where such Department can address research and development with respect to agricultural crops that have the potential of producing critical materials for strategic and industrial purposes.
(d) Authority of Secretary in carrying out demonstration project
Notwithstanding any other provision of law, in carrying out a demonstration project referred to in subsection (b)(9), the Secretary may—
(1) enter into a contract or cooperative agreement with, or provide a grant to, any person, or public or private agency or organization, to participate in, carry out, support, or stimulate such project;
(2) make available for purposes of clause (1) agricultural commodities or the products thereof acquired by the Commodity Credit Corporation under price support operations conducted by the Corporation; or
(3) use any funds appropriated pursuant to section 178n(a) of this title, or any funds provided by any person, or public or private agency or organization, to carry out such project or reimburse the Commodity Credit Corporation for agricultural commodities or products that are utilized in connection with such project.
(Pub. L. 95–592, §5, Nov. 4, 1978, 92 Stat. 2531; Pub. L. 98–284, §5, May 16, 1984, 98 Stat. 182; Pub. L. 99–198, title XIV, §1439, Dec. 23, 1985, 99 Stat. 1559; Pub. L. 102–237, title X, §1005(1), Dec. 13, 1991, 105 Stat. 1894; Pub. L. 115–334, title VII, §7501(a), Dec. 20, 2018, 132 Stat. 4819.)
Editorial Notes
Amendments
2018—Subsec. (b)(9). Pub. L. 115–334 inserted ", and including hemp (as defined in section 1639o of this title)" after "hydrocarbon-containing plants".
1991—Subsec. (b)(9). Pub. L. 102–237 substituted "industrial purposes," for "industrial purposes,,".
1985—Subsec. (b)(9). Pub. L. 99–198, §1439(a), extended research program to carrying out demonstration projects to promote the development or commercialization of native agricultural crops, including projects designed to expand domestic or foreign markets for such crops.
Subsec. (d). Pub. L. 99–198, §1439(b), added subsec. (d).
1984—Subsec. (a). Pub. L. 98–284, §5(1), added subsec. (a).
Subsec. (b). Pub. L. 98–284, §5(1), designated existing provisions as subsec. (b) and in first sentence of subsec. (b) as so designated inserted provision relating to development of other critical agricultural materials from native agricultural crops having strategic and industrial importance.
Subsec. (b)(1), (2). Pub. L. 98–284, §5(2), redesignated cls. (a) and (b) as pars. (1) and (2) of subsec. (b).
Subsec. (b)(3). Pub. L. 98–284, §5(2), (3), redesignated cl. (c) as par. (3) of subsec. (b) and substituted "accelerating present plant breeding, genetics, and selection programs for the purpose of improving and increasing latex yields, expanding insect and disease resistance, broadening the ranges of drought and cold resistance of the Parthenium plant, and providing a system of regional research trials for enhancing and increasing the supply of foundation seed for certified seed production" for "carrying out breeding and selection programs for the purpose of improving latex yields, expanding insect and disease resistance, and broadening the ranges of drought and cold tolerance of the Parthenium plant".
Subsec. (b)(4). Pub. L. 98–284, §5(2), (4), redesignated cl. (d) as par. (4) of subsec. (b) and substituted "establishing a system of large-scale experimental plantings (aggregating ten thousand acres or more) to provide shrub for feedstock to process in the developmental rubber processing facility described in paragraph (7)" for "establishing a system of experimental plantings in arid and semiarid regions of the United States having suitable climatic and soil conditions for the culture of Parthenium".
Subsec. (b)(5), (6). Pub. L. 98–284, §5(2), redesignated cls. (e) and (f) as pars. (5) and (6), respectively, of subsec. (b).
Subsec. (b)(7). Pub. L. 98–284, §5(2), (5), redesignated cl. (g) as par. (7) of subsec. (b) and substituted "accelerating the refinement of present extraction and processing technologies and future extraction technologies, including the development and construction of a developmental rubber processing facility for the extraction and production of test quantities of guayule natural rubber;" for "further refining present extraction technologies and future extraction technologies, including technologies which utilize solar energy; and".
Subsec. (b)(8). Pub. L. 98–284, §5(2), redesignated cl. (h) as par. (8) of subsec. (b).
Subsec. (b)(9). Pub. L. 98–284, §5(7), added par. (9).
Subsec. (c). Pub. L. 98–284, §5(8), added subsec. (c).
§178d. Research and development program by Secretary of Commerce
The Secretary of Commerce is authorized and directed to initiate and carry out research, technology development, technology transfer, and demonstration projects to test and demonstrate the economic feasibility of the manufacture and commercialization of natural rubber from Parthenium or other hydrocarbon-containing plants or the manufacture and commercialization of other critical agricultural materials from native agricultural crops having strategic and industrial importance. Such research shall include but not be limited to—
(a) conducting research and development on extraction and processing techniques;
(b) economic analysis of the production of native latex, including usable byproducts;
(c) studying the environmental, social, and economic impacts of the commercial development of native latex;
(d) evaluating the commercial marketability of Parthenium and rubber derived from other hydrocarbon-containing plants;
(e) further refining present extraction and manufacturing technologies and future extraction and manufacturing technologies, including technologies which utilize solar energy;
(f) developing pertinent material and records on manufacturing of natural rubber which shall be available to other Federal and State agencies and private persons who are interested in or involved in natural rubber development, or manufacture; and
(g) to the extent appropriate, carrying out research activities with respect to native agricultural crops (other than Parthenium and other hydrocarbon-containing plants) that would supply critical agricultural materials for strategic and industrial purposes, in the manner specified in clauses (a) through (f).
(Pub. L. 95–592, §6, Nov. 4, 1978, 92 Stat. 2531; Pub. L. 98–284, §6, May 16, 1984, 98 Stat. 183.)
Editorial Notes
Amendments
1984—Pub. L. 98–284, §6(1), (2), inserted in provisions preceding cl. (a) reference to the manufacture and commercialization of other critical agricultural materials from native agricultural crops having strategic and industrial importance, and struck out "may be carried out through the Regional Commissions or otherwise and" after "Such research".
Cl. (g). Pub. L. 98–284, §6(5), added cl. (g).
§178e. Cooperative projects with Mexico, Australia, and Israel
The Secretaries, in consultation with the Secretary of State, are authorized and encouraged to enter into cooperative projects with the Government of Mexico, the Government of Australia, and the Government of Israel in order to accomplish appropriate aspects of the research and development provided for in this subchapter. Such cooperative projects should include, but not be limited to, projects to determine the economic feasibility of extraction and processing of latex and other critical agricultural materials produced in the United States.
(Pub. L. 95–592, §7, Nov. 4, 1978, 92 Stat. 2532; Pub. L. 98–284, §7, May 16, 1984, 98 Stat. 183.)
Editorial Notes
Amendments
1984—Pub. L. 98–284 inserted ", the Government of Australia, and the Government of Israel", and substituted "extraction and processing of latex and other critical agricultural materials produced in the United States" for "latex extraction and processing".
§178f. Assistance from States and public agencies; contracts and agreements
The Secretaries are authorized to accept financial or other assistance from any State or public agency to aid in carrying out the provisions of this subchapter and to enter into contracts with respect to such assistance and to enter into agreements with any State or public agency for the purpose of demonstrating, transferring, or applying results of research or methods of economic development relating to native latex or to other critical agricultural materials.
(Pub. L. 95–592, §8, Nov. 4, 1978, 92 Stat. 2532; Pub. L. 98–284, §8, May 16, 1984, 98 Stat. 183.)
Editorial Notes
Amendments
1984—Pub. L. 98–284 inserted "or to other critical agricultural materials".
§178g. Powers of Secretary of Agriculture
In carrying out the provisions of this subchapter, the Secretary of Agriculture is authorized to—
(a) make grants to States, education institutions, scientific organizations, and Indian tribes as defined in the Indian Self-Determination and Education Assistance Act (Public Law 93–638, 25 U.S.C. 450),1 and enter into contracts with such institutions and organizations and with industrial or engineering firms;
(b) acquire the services of biologists, agronomists, foresters, geneticists, chemists, engineers, economists, and other personnel by contract or otherwise;
(c) utilize the facilities of Federal and State scientific laboratories;
(d) establish and operate necessary facilities and plantations to carry out the continuous research, testing, development, and programing necessary to effectuate the purposes of this subchapter;
(e) acquire secret processes, technical data, inventions, patent applications, patents, licenses, land and interest in land (including water rights), facilities, and other property or rights by purchase, license, lease, or donation;
(f) assemble and maintain pertinent and current literature and publications, patents and licenses, land and interests in land;
(g) cause onsite inspections to be made of promising projects, domestic or foreign, and, in the case of projects located in the United States, cooperate and participate in their development when the Secretary determines that the purpose of this subchapter will be served thereby;
(h) foster and participate in regional, national, and international conferences relating to native latex culture or the culture of other native agricultural crops which could supply critical agricultural materials;
(i) coordinate, correlate, and publish information with a view to advancing the development of native latex technology or the technology of other native agricultural crops which could supply critical agricultural materials; and
(j) cooperate with other Federal departments and agencies, with State and local departments, agencies, and instrumentalities, and with interested persons, firms, institutions, and organizations.
(Pub. L. 95–592, §9, Nov. 4, 1978, 92 Stat. 2532; Pub. L. 98–284, §9, May 16, 1984, 98 Stat. 183.)
Editorial Notes
References in Text
The Indian Self-Determination and Education Assistance Act (Public Law 93–638, 25 U.S.C. 450), referred to in cl. (a), is Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, which was classified principally to subchapter II (§450 et seq.) of chapter 14 of Title 25, Indians, prior to editorial reclassification as chapter 46 (§5301 et seq.) of Title 25. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of Title 25 and Tables.
Amendments
1984—Cl. (h). Pub. L. 98–284, §9(1), inserted "or the culture of other native agricultural crops which could supply critical agricultural materials".
Cl. (i). Pub. L. 98–284, §9(2), inserted "or the technology of other native agricultural crops which could supply critical agricultural materials".
1 See References in Text note below.
§178h. Powers of Secretary of Commerce
In carrying out the provisions of this subchapter, the Secretary of Commerce is authorized to—
(a) make grants to States, education institutions, scientific organizations, and Indian tribes as defined in the Indian Self-Determination and Education Assistance Act (Public Law 93–638, 25 U.S.C. 450),1 and enter into contracts with such institutions and organizations and with industrial or engineering firms;
(b) acquire the services of biologists, agronomists, foresters, geneticists, engineers, economists, and other personnel having expertise in native agricultural crops which could supply critical agricultural materials by contract or otherwise;
(c) utilize the facilities of Federal and State institutions and other scientific laboratories;
(d) establish and operate necessary facilities and pilot plants to carry out the continuous research, testing, development, and programing necessary to effectuate the purposes of this section;
(e) acquire secret processes, technical data, invention, patent applications, patents, licenses, land and interests in land (including water rights), plants and facilities, and other property or rights by purchase, license, lease, or donation; and
(f) foster and participate in regional, national, and international conferences relating to the activities authorized by this subchapter.
(Pub. L. 95–592, §10, Nov. 4, 1978, 92 Stat. 2533; Pub. L. 98–284, §10, May 16, 1984, 98 Stat. 184.)
Editorial Notes
References in Text
The Indian Self-Determination and Education Assistance Act (Public Law 93–638, 25 U.S.C. 450), referred to in cl. (a), is Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, which was classified principally to subchapter II (§450 et seq.) of chapter 14 of Title 25, Indians, prior to editorial reclassification as chapter 46 (§5301 et seq.) of Title 25. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of Title 25 and Tables.
Amendments
1984—Pub. L. 98–284, §10(1), (2), in provisions preceding cl. (a) substituted "this subchapter" for "this section" and struck out ", acting through the Regional Commissions or otherwise," after "the Secretary of Commerce".
Cl. (b). Pub. L. 98–284, §10(3), inserted "having expertise in native agricultural crops which could supply critical agricultural materials".
Cl. (f). Pub. L. 98–284, §10(4), substituted "the activities authorized by this subchapter" for "natural rubber manufacture".
1 See References in Text note below.
§178i. Coordination of activities with Federal agencies
In carrying out the provisions of this subchapter, the Secretaries and the Joint Commission shall cooperate with each other in the conduct of their activities under this subchapter, and shall ensure that their activities under this subchapter are closely coordinated with the activities of other Federal agencies such as the Department of the Interior, National Science Foundation, Bureau of Indian Affairs, Department of Energy, Department of State, Department of Defense, Treasury Department, Federal Emergency Management Agency, and others, in order to prevent duplication of effort, ensure compatibility with ongoing programs and policies, and to fully exploit the opportunities inherent in the culture and manufacture of native latex.
(Pub. L. 95–592, §11, Nov. 4, 1978, 92 Stat. 2533; Pub. L. 98–284, §11, May 16, 1984, 98 Stat. 184; Pub. L. 102–237, title X, §1005(2), Dec. 13, 1991, 105 Stat. 1894.)
Editorial Notes
Amendments
1991—Pub. L. 102–237 substituted "ensure" for "insure" in two places.
1984—Pub. L. 98–284 substituted "shall cooperate with each other in the conduct of their activities under this subchapter, and shall insure that their activities under this subchapter are closely coordinated with the activities of other Federal agencies" for "shall insure that their activities are closely coordinated with the activities of other Federal agencies" and "Federal Emergency Management Agency, and others," for "Federal Preparedness Agency, and others", and inserted "Department of State,".
Statutory Notes and Related Subsidiaries
Transfer of Functions
For transfer of all functions, personnel, assets, components, authorities, grant programs, and liabilities of the Federal Emergency Management Agency, including the functions of the Under Secretary for Federal Emergency Management relating thereto, to the Federal Emergency Management Agency, see section 315(a)(1) of Title 6, Domestic Security.
For transfer of functions, personnel, assets, and liabilities of the Federal Emergency Management Agency, including the functions of the Director of the Federal Emergency Management Agency relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see former section 313(1) and sections 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
§178j. Laws governing inventions under this subchapter
Relative to the definitions of, title to, and licensing of inventions made or conceived in the course of or under any contract or grant pursuant to this subchapter, and notwithstanding any other provisions of law, the provisions of sections 5908 and 5909 of title 42 shall govern.
(Pub. L. 95–592, §12, Nov. 4, 1978, 92 Stat. 2533.)
§178k. Disposition of byproducts and strategic and industrially important products
The Secretaries may dispose of any latex, resin, wax, pulp, and any other byproducts, as well as products, other than rubber, developed from agricultural crops which are of strategic and industrial importance, resulting from operations under this subchapter. Dispositions under this section may include sales of the materials involved to other Federal departments and agencies for testing purposes. All moneys received from dispositions under this section shall be paid into the Treasury as miscellaneous receipts.
(Pub. L. 95–592, §13, Nov. 4, 1978, 92 Stat. 2533; Pub. L. 98–284, §12, May 16, 1984, 98 Stat. 184.)
Editorial Notes
Amendments
1984—Pub. L. 98–284, substituted "The Secretaries" for "The Secretary of Agriculture and the Secretary of Commerce", and inserted ", as well as products, other than rubber, developed from agricultural crops which are of strategic and industrial importance," and "Dispositions under this section may include sales of the materials involved to other Federal departments and agencies for testing purposes."
§178l. Rules and regulations
The Secretaries may issue rules and regulations necessary to effectuate the purposes of this subchapter.
(Pub. L. 95–592, §14, Nov. 4, 1978, 92 Stat. 2533; Pub. L. 98–284, §13, May 16, 1984, 98 Stat. 184.)
Editorial Notes
Amendments
1984—Pub. L. 98–284 substituted "The Secretaries" for "The Secretary of Agriculture and the Secretary of Commerce".
§178m. Report to President and Congress
The Secretaries shall submit to the President and the Congress, no later than December 31, 1980, and each year thereafter through 1987, a report on the status of the research, development, and other work underway under this subchapter. Such report shall (1) recommend specific directions for further research, development and other work, and (2) recommend funding levels for various elements of the overall project.
(Pub. L. 95–592, §15, Nov. 4, 1978, 92 Stat. 2533; Pub. L. 98–284, §14, May 16, 1984, 98 Stat. 184.)
Editorial Notes
Amendments
1984—Pub. L. 98–284 substituted "The Secretaries" for "The Secretary of Agriculture and the Secretary of Commerce" and "1987" for "1982".
§178n. Administration and funding
(a) Authorization of appropriations to Secretary of Agriculture
There are authorized to be appropriated to the Secretary of Agriculture to carry out this subchapter—
(1) such sums as are necessary for each of fiscal years 1991 through 2013; and
(2) $2,000,000 for each of fiscal years 2014 through 2023.
(b) Administration and management
No more than 3 per centum of funds authorized under subsection (a) shall be available for administration and management of the program.
(c) Contract authority as limited by amounts provided in appropriations acts
Notwithstanding any other provision of this subchapter the authority to enter into contracts shall be effective for any fiscal year only to such extent or in such amounts as are provided in appropriations Acts.
(d) Activities limited to critical materials other than native latex after fiscal 1988
Notwithstanding any other provision of this subchapter, the Secretaries and the Joint Commission shall limit their activities under this subchapter to critical agricultural materials other than native latex after the close of the fiscal year ending September 30, 1988.
(Pub. L. 95–592, §16, Nov. 4, 1978, 92 Stat. 2534; Pub. L. 98–284, §15, May 16, 1984, 98 Stat. 184; Pub. L. 101–624, title XVI, §1601(e), Nov. 28, 1990, 104 Stat. 3704; Pub. L. 104–127, title VIII, §881(b), Apr. 4, 1996, 110 Stat. 1175; Pub. L. 105–185, title III, §301(c), June 23, 1998, 112 Stat. 563; Pub. L. 107–171, title VII, §7138, May 13, 2002, 116 Stat. 436; Pub. L. 110–234, title VII, §7401, May 22, 2008, 122 Stat. 1245; Pub. L. 110–246, §4(a), title VII, §7401, June 18, 2008, 122 Stat. 1664, 2007; Pub. L. 113–79, title VII, §7401, Feb. 7, 2014, 128 Stat. 893; Pub. L. 115–334, title VII, §7501(b), Dec. 20, 2018, 132 Stat. 4819.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2018—Subsec. (a)(2). Pub. L. 115–334 substituted "2023" for "2018".
2014—Subsec. (a). Pub. L. 113–79 struck out "such sums as are necessary" after "Agriculture", substituted "subchapter—" for "subchapter in each of the fiscal years 1991 through 2012.", and added pars. (1) and (2).
2008—Subsec. (a). Pub. L. 110–246, §7401, substituted "2012" for "2007".
2002—Subsec. (a). Pub. L. 107–171 substituted "2007" for "2002".
1998—Subsec. (a). Pub. L. 105–185 substituted "2002" for "1997".
1996—Subsec. (a). Pub. L. 104–127 substituted "1997" for "1995".
1990—Subsec. (a). Pub. L. 101–624, §1601(e)(1), added subsec. (a) and struck out former subsec. (a) which read as follows: "There is authorized to be appropriated to the Secretary of Agriculture $2,500,000 for each of the fiscal years ending September 30, 1980, and September 30, 1981, $5,000,000 for each of the fiscal years ending September 30, 1982, and September 30, 1983, $5,000,000 for the fiscal year ending September 30, 1984, $5,500,000 for the fiscal year ending September 30, 1985, $6,500,000 for the fiscal year ending September 30, 1986, $7,500,000 for the fiscal year ending September 30, 1987, and $8,000,000 for the fiscal year ending September 30, 1988, to carry out the purposes of this subchapter. Funds appropriated under this paragraph shall be available for obligation until the last day of the fiscal year after the year for which such funds are authorized."
Subsec. (b). Pub. L. 101–624, §1601(e)(2)–(4), redesignated subsec. (c) as (b) and substituted "subsection (a)" for "subsections (a) and (b)", and struck out former subsec. (b) which read as follows: "There is authorized to be appropriated to the Secretary of Commerce $2,500,000 for each of the fiscal years ending September 30, 1980, and September 30, 1981, $5,000,000 for each of the fiscal years ending September 30, 1982, and September 30, 1983, $2,500,000 for the fiscal year ending September 30, 1984, $3,000,000 for the fiscal year ending September 30, 1985, $3,500,000 for the fiscal year ending September 30, 1986, $4,000,000 for the fiscal year ending September 30, 1987, and $4,500,000 for the fiscal year ending September 30, 1988, to carry out the purposes of this subchapter. Funds appropriated under this paragraph shall be available for obligation until the last day of the fiscal year after the year for which such funds are authorized."
Subsecs. (c) to (e). Pub. L. 101–624, §1601(e)(4), redesignated subsecs. (c) to (e) as (b) to (d), respectively.
1984—Subsec. (a). Pub. L. 98–284, §15(a), inserted "$5,000,000 for the fiscal year ending September 30, 1984, $5,500,000 for the fiscal year ending September 30, 1985, $6,500,000 for the fiscal year ending September 30, 1986, $7,500,000 for the fiscal year ending September 30, 1987, and $8,000,000 for the fiscal year ending September 30, 1988," and struck out "and" after "1981,".
Subsec. (b). Pub. L. 98–284, §15(b), inserted "$2,500,000 for the fiscal year ending September 30, 1984, $3,000,000 for the fiscal year ending September 30, 1985, $3,500,000 for the fiscal year ending September 30, 1986, $4,000,000 for the fiscal year ending September 30, 1987, and $4,500,000 for the fiscal year ending September 30, 1988," and struck out "and" after "1981,".
Subsec. (e). Pub. L. 98–284, §15(c), added subsec. (e).
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
CHAPTER 9—PACKERS AND STOCKYARDS
SUBCHAPTER I—GENERAL DEFINITIONS
SUBCHAPTER II—PACKERS GENERALLY
Part A—General Provisions
Part B—Swine Packer Marketing Contracts
SUBCHAPTER III—STOCKYARDS AND STOCKYARD DEALERS
SUBCHAPTER IV—LIVE POULTRY DEALERS AND HANDLERS
SUBCHAPTER V—GENERAL PROVISIONS
SUBCHAPTER VI—CHARGE FOR INSPECTION
Executive Documents
Transfer of Functions
Functions of Bureau of Animal Industry transferred to Secretary of Agriculture by 1947 Reorg. Plan No. 1, §301, eff. July 1, 1947, 12 F.R. 4534, 61 Stat. 952. See note set out under section 391 of this title.
By order of Secretary of Agriculture, Packers and Stockyards Administration abolished on July 1, 1927, and enforcement of Packers and Stockyards Act of 1921, which is classified to this chapter, was put under control of chief of Bureau of Animal Industry.
SUBCHAPTER I—GENERAL DEFINITIONS
§181. Short title
This chapter may be cited as the "Packers and Stockyards Act, 1921."
(Aug. 15, 1921, ch. 64, title I, §1, 42 Stat. 159.)
Statutory Notes and Related Subsidiaries
Short Title of 2016 Amendment
Pub. L. 114–237, §1, Oct. 7, 2016, 130 Stat. 970, provided that: "This Act [amending sections 201 and 228b of this title] may be cited as the 'Clarification of Treatment of Electronic Sales of Livestock Act of 2016'."
Short Title of 1987 Amendment
Pub. L. 100–173, §1, Nov. 23, 1987, 101 Stat. 917, provided that: "This Act [enacting sections 197 and 228b–1 to 228b–4 of this title, amending sections 182, 192, 209, 221, 223, 227, and 228a of this title, repealing sections 218 to 218d of this title, and enacting provisions set out as notes under sections 182 and 227 of this title] may be cited as the 'Poultry Producers Financial Protection Act of 1987'."
Improved Investigative and Enforcement Activities Under This Chapter
Pub. L. 106–472, title III, §312(a)-(d), Nov. 9, 2000, 114 Stat. 2076, 2077, provided that:
"(a)
"(b)
"(1) implement the recommendations in the report regarding investigation management, operations, and case methods development processes; and
"(2) effectively identify and investigate complaints of unfair and anti-competitive practices in violation of the Packers and Stockyards Act, 1921 (7 U.S.C. 181 et seq.), and enforce the Act.
"(c)
"(d)
§182. Definitions
When used in this chapter—
(1) The term "person" includes individuals, partnerships, corporations, and associations;
(2) The term "Secretary" means the Secretary of Agriculture;
(3) The term "meat food products" means all products and byproducts of the slaughtering and meat-packing industry—if edible;
(4) The term "livestock" means cattle, sheep, swine, horses, mules, or goats—whether live or dead;
(5) The term "livestock products" means all products and byproducts (other than meats and meat food products) of the slaughtering and meat-packing industry derived in whole or in part from livestock;
(6) The term "poultry" means chickens, turkeys, ducks, geese, and other domestic fowl;
(7) The term "poultry product" means any product or byproduct of the business of slaughtering poultry and processing poultry after slaughter;
(8) The term "poultry grower" means any person engaged in the business of raising and caring for live poultry for slaughter by another, whether the poultry is owned by such person or by another, but not an employee of the owner of such poultry;
(9) The term "poultry growing arrangement" means any growout contract, marketing agreement, or other arrangement under which a poultry grower raises and cares for live poultry for delivery, in accord with another's instructions, for slaughter;
(10) The term "live poultry dealer" means any person engaged in the business of obtaining live poultry by purchase or under a poultry growing arrangement for the purpose of either slaughtering it or selling it for slaughter by another, if poultry is obtained by such person in commerce, or if poultry obtained by such person is sold or shipped in commerce, or if poultry products from poultry obtained by such person are sold or shipped in commerce; and
(11) The term "commerce" means commerce between any State, Territory, or possession, or the District of Columbia, and any place outside thereof; or between points within the same State, Territory, or possession, or the District of Columbia, but through any place outside thereof; or within any Territory or possession, or the District of Columbia.
(12)
(A) the swine is obtained by the person in commerce; or
(B) the swine (including products from the swine) obtained by the person is sold or shipped in commerce.
(13)
(14)
(Aug. 15, 1921, ch. 64, title I, §2(a), 42 Stat. 159; Pub. L. 94–410, §3(c), Sept. 13, 1976, 90 Stat. 1249; Pub. L. 100–173, §2, Nov. 23, 1987, 101 Stat. 917; Pub. L. 107–171, title X, §10502(a), May 13, 2002, 116 Stat. 509.)
Editorial Notes
Codification
Section is composed of subsec. (a) of section 2 of act Aug. 15, 1921. Subsec. (b) of section 2 is classified to section 183 of this title.
Amendments
2002—Pars. (12) to (14). Pub. L. 107–171 added pars. (12) to (14).
1987—Pars. (6) to (11). Pub. L. 100–173 added pars. (6) to (10) and redesignated former par. (6) as (11).
1976—Pars. (4), (5). Pub. L. 94–410 substituted "livestock" for "live stock" in par. (4) and for "live-stock" in par. (5).
Statutory Notes and Related Subsidiaries
Effective Date of 1987 Amendment
Pub. L. 100–173, §12, Nov. 23, 1987, 101 Stat. 923, provided that: "This Act and the amendments made by this Act [enacting sections 197 and 228b–1 to 228b–4 of this title, amending this section and sections 192, 209, 221, 223, 227, and 228a of this title, repealing sections 218 to 218d of this title, and enacting provisions set out as notes under sections 181 and 227 of this title] shall take effect 90 days after the date of the enactment of this Act [Nov. 23, 1987]."
Savings Provision
Pub. L. 94–410, §10, Sept. 13, 1976, 90 Stat. 1252, provided that: "Pending proceedings shall not be abated by reason of any provision of this Act [enacting sections 196 and 228a to 228c of this title and amending this section and sections 183, 191 to 193, 201, 204, 207, 209, 210, 212, 213, 228, and 229 of this title], but shall be disposed of pursuant to the provisions of the Packers and Stockyards Act, 1921, as amended [this chapter], and the Act of July 12, 1943 [section 204 of this title], in effect immediately prior to the effective date of this Act [Sept. 13, 1976]."
§183. When transaction deemed in commerce; "State" defined
For the purpose of this chapter (but not in anywise limiting the definition in section 182 of this title) a transaction in respect to any article shall be considered to be in commerce if such article is part of that current of commerce usual in the livestock and meat-packing industries, whereby livestock, meats, meat food products, livestock products, dairy products, poultry, poultry products, or eggs, are sent from one State with the expectation that they will end their transit, after purchase, in another, including, in addition to cases within the above general description, all cases where purchase or sale is either for shipment to another State, or for slaughter of livestock within the State and the shipment outside the State of the products resulting from such slaughter. Articles normally in such current of commerce shall not be considered out of such current through resort being had to any means or device intended to remove transactions in respect thereto from the provisions of this chapter. For the purpose of this section the word "State" includes Territory, the District of Columbia, possession of the United States, and foreign nation.
(Aug. 15, 1921, ch. 64, title I, §2(b), 42 Stat. 160; Pub. L. 94–410, §3(c), Sept. 13, 1976, 90 Stat. 1249.)
Editorial Notes
Codification
Section is composed of subsec. (b) of section 2 of act Aug. 15, 1921. Subsec. (a) of section 2 is classified to section 182 of this title.
Amendments
1976—Pub. L. 94–410 substituted "livestock" for "live stock" and "live-stock" wherever appearing.
SUBCHAPTER II—PACKERS GENERALLY
Part A—General Provisions
§191. "Packer" defined
When used in this chapter the term "packer" means any person engaged in the business (a) of buying livestock in commerce for purposes of slaughter, or (b) of manufacturing or preparing meats or meat food products for sale or shipment in commerce, or (c) of marketing meats, meat food products, or livestock products in an unmanufactured form acting as a wholesale broker, dealer, or distributor in commerce.
(Aug. 15, 1921, ch. 64, title II, §201, 42 Stat. 160; Pub. L. 94–410, §2, Sept. 13, 1976, 90 Stat. 1249.)
Editorial Notes
Amendments
1976—Pub. L. 94–410 substituted definition of "packer" for former definition which included provisions dealing with direct or indirect control of specified businesses through stock ownership or otherwise.
§192. Unlawful practices enumerated
It shall be unlawful for any packer or swine contractor with respect to livestock, meats, meat food products, or livestock products in unmanufactured form, or for any live poultry dealer with respect to live poultry, to:
(a) Engage in or use any unfair, unjustly discriminatory, or deceptive practice or device; or
(b) Make or give any undue or unreasonable preference or advantage to any particular person or locality in any respect, or subject any particular person or locality to any undue or unreasonable prejudice or disadvantage in any respect; or
(c) Sell or otherwise transfer to or for any other packer, swine contractor, or any live poultry dealer, or buy or otherwise receive from or for any other packer, swine contractor, or any live poultry dealer, any article for the purpose or with the effect of apportioning the supply between any such persons, if such apportionment has the tendency or effect of restraining commerce or of creating a monopoly; or
(d) Sell or otherwise transfer to or for any other person, or buy or otherwise receive from or for any other person, any article for the purpose or with the effect of manipulating or controlling prices, or of creating a monopoly in the acquisition of, buying, selling, or dealing in, any article, or of restraining commerce; or
(e) Engage in any course of business or do any act for the purpose or with the effect of manipulating or controlling prices, or of creating a monopoly in the acquisition of, buying, selling, or dealing in, any article, or of restraining commerce; or
(f) Conspire, combine, agree, or arrange with any other person (1) to apportion territory for carrying on business, or (2) to apportion purchases or sales of any article, or (3) to manipulate or control prices; or
(g) Conspire, combine, agree, or arrange with any other person to do, or aid or abet the doing of, any act made unlawful by subdivisions (a), (b), (c), (d), or (e).
(Aug. 15, 1921, ch. 64, title II, §202, 42 Stat. 161; Aug. 15, 1921, ch. 64, title V, §503, as added Aug. 14, 1935, ch. 532, 49 Stat. 649; Pub. L. 85–909, §1(1), Sept. 2, 1958, 72 Stat. 1749; Pub. L. 94–410, §3(a), Sept. 13, 1976, 90 Stat. 1249; Pub. L. 100–173, §3, Nov. 23, 1987, 101 Stat. 917; Pub. L. 102–237, title X, §1008(1), Dec. 13, 1991, 105 Stat. 1898; Pub. L. 106–78, title IX, §912, Oct. 22, 1999, 113 Stat. 1205; Pub. L. 107–171, title X, §10502(b)(1), (2)(A), May 13, 2002, 116 Stat. 509, 510.)
Amendment of Section
For termination of amendment by section 942 of Pub. L. 106–78, see Termination Date of 1999 Amendment note below.
Editorial Notes
Amendments
2002—Pub. L. 107–171, §10502(b)(1), substituted "packer or swine contractor" for "packer" in introductory provisions.
Subsec. (c). Pub. L. 107–171, §10502(b)(2)(A), inserted ", swine contractor," after "other packer" in two places.
1999—Subsec. (b). Pub. L. 106–78, §§912, 942, temporarily struck out "whatsoever" after "locality in any respect" and after "disadvantage in any respect". See Termination Date of 1999 Amendment note below.
1991—Subsec. (c). Pub. L. 102–237 substituted a comma for period after second reference to "dealer".
1987—Pub. L. 100–173, §3(1), substituted "for any packer with respect to livestock, meats, meat food products, or livestock products in unmanufactured form, or for any live poultry dealer with respect to live poultry, to" for "with respect to livestock, meats, meat food products, livestock products in unmanufactured form, poultry, or poultry products for any packer or any live poultry dealer or handler to" in introductory provisions.
Par. (c). Pub. L. 100–173, §3(2), struck out reference to poultry handlers wherever appearing and substituted "such persons" for "such packers".
1976—Pub. L. 94–410 struck out "in commerce" wherever appearing.
1958—Pub. L. 85–909 inserted "with respect to livestock, meats, meat food products, livestock products in unmanufactured form, poultry, or poultry products" after "unlawful".
1935—Act Aug. 15, 1921, title V, §503, as added Aug. 14, 1935, inserted "or any live poultry dealer or handler" after "packer" wherever appearing.
Statutory Notes and Related Subsidiaries
Termination Date of 1999 Amendment
Amendment by Pub. L. 106–78 to terminate Dec. 20, 2024, see section 942 of Pub. L. 106–78, set out in a Livestock Mandatory Reporting note under section 1635 of this title.
Effective Date of 1987 Amendment
Amendment by Pub. L. 100–173 effective 90 days after Nov. 23, 1987, see section 12 of Pub. L. 100–173, set out as a note under section 182 of this title.
§193. Procedure before Secretary for violations
(a) Complaint; hearing; intervention
Whenever the Secretary has reason to believe that any packer or swine contractor has violated or is violating any provision of this subchapter, he shall cause a complaint in writing to be served upon the packer or swine contractor, stating his charges in that respect, and requiring the packer or swine contractor to attend and testify at a hearing at a time and place designated therein, at least thirty days after the service of such complaint; and at such time and place there shall be afforded the packer or swine contractor a reasonable opportunity to be informed as to the evidence introduced against him (including the right of cross-examination), and to be heard in person or by counsel and through witnesses, under such regulations as the Secretary may prescribe. Any person for good cause shown may on application be allowed by the Secretary to intervene in such proceeding, and appear in person or by counsel. At any time prior to the close of the hearing the Secretary may amend the complaint; but in case of any amendment adding new charges the hearing shall, on the request of the packer or swine contractor, be adjourned for a period not exceeding fifteen days.
(b) Report and order; penalty
If, after such hearing, the Secretary finds that the packer or swine contractor has violated or is violating any provisions of this subchapter covered by the charges, he shall make a report in writing in which he shall state his findings as to the facts, and shall issue and cause to be served on the packer or swine contractor an order requiring such packer or swine contractor to cease and desist from continuing such violation. The testimony taken at the hearing shall be reduced to writing and filed in the records of the Department of Agriculture. The Secretary may also assess a civil penalty of not more than $10,000 for each such violation. In determining the amount of the civil penalty to be assessed under this section, the Secretary shall consider the gravity of the offense, the size of the business involved, and the effect of the penalty on the person's ability to continue in business. If, after the lapse of the period allowed for appeal or after the affirmance of such penalty, the person against whom the civil penalty is assessed fails to pay such penalty, the Secretary may refer the matter to the Attorney General who may recover such penalty by an action in the appropriate district court of the United States.
(c) Amendment of report or order
Until the record in such hearing has been filed in a court of appeals of the United States, as provided in section 194 of this title, the Secretary at any time, upon such notice and in such manner as he deems proper, but only after reasonable opportunity to the packer or swine contractor to be heard, may amend or set aside the report or order, in whole or in part.
(d) Service of process
Complaints, orders, and other processes of the Secretary under this section may be served in the same manner as provided in section 45 of title 15.
(Aug. 15, 1921, ch. 64, title II, §203, 42 Stat. 161; June 25, 1948, ch. 646, §32(a), 62 Stat. 991; May 24, 1949, ch. 139, §127, 63 Stat. 107; Pub. L. 85–791, §6(a), Aug. 28, 1958, 72 Stat. 944; Pub. L. 94–410, §3(b), Sept. 13, 1976, 90 Stat. 1249; Pub. L. 107–171, title X, §10502(b)(1), May 13, 2002, 116 Stat. 509.)
Editorial Notes
Amendments
2002—Subsecs. (a) to (c). Pub. L. 107–171 substituted "packer or swine contractor" for "packer" wherever appearing.
1976—Subsec. (b). Pub. L. 94–410 inserted provisions dealing with authority of Secretary to assess a civil penalty for violations and, upon failure to pay, procedure for recovery of such penalty.
1958—Subsec. (c). Pub. L. 85–791 struck out "a transcript of" after "until".
Statutory Notes and Related Subsidiaries
Change of Name
Act June 25, 1948, as amended by act May 24, 1949, substituted "court of appeals" for "circuit court of appeals".
Executive Documents
Transfer of Functions
Functions of all officers, agencies, and employees of Department of Agriculture transferred, with certain exceptions, to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
§194. Conclusiveness of order; appeal and review
(a) Filing of petition; bond
An order made under section 193 of this title shall be final and conclusive unless within thirty days after service the packer or swine contractor appeals to the court of appeals for the circuit in which he has his principal place of business, by filing with the clerk of such court a written petition praying that the Secretary's order be set aside or modified in the manner stated in the petition, together with a bond in such sum as the court may determine, conditioned that such packer or swine contractor will pay the costs of the proceedings if the court so directs.
(b) Filing of record by Secretary
The clerk of the court shall immediately cause a copy of the petition to be delivered to the Secretary, and the Secretary shall thereupon file in the court the record in such proceedings, as provided in section 2112 of title 28. If before such record is filed the Secretary amends or sets aside his report or order, in whole or in part, the petitioner may amend the petition within such time as the court may determine, on notice to the Secretary.
(c) Temporary injunction
At any time after such petition is filed, the court, on application of the Secretary, may issue a temporary injunction, restraining, to the extent it deems proper, the packer or swine contractor and his officers, directors, agents, and employees, from violating any of the provisions of the order pending the final determination of the appeal.
(d) Evidence
The evidence so taken or admitted, and filed as aforesaid as a part of the record, shall be considered by the court as the evidence in the case.
(e) Action by court
The court may affirm, modify, or set aside the order of the Secretary.
(f) Additional evidence
If the court determines that the just and proper disposition of the case requires the taking of additional evidence, the court shall order the hearing to be reopened for the taking of such evidence, in such manner and upon such terms and conditions as the court may deem proper. The Secretary may modify his findings as to the facts, or make new findings, by reason of the additional evidence so taken, and he shall file such modified or new findings and his recommendations, if any, for the modifications or setting aside of his order, with the return of such additional evidence.
(g) Injunction
If the court of appeals affirms or modifies the order of the Secretary, its decree shall operate as an injunction to restrain the packer or swine contractor, and his officers, directors, agents, and employees from violating the provisions of such order or such order as modified.
(h) Finality
The court of appeals shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to review, and to affirm, set aside, or modify, such orders of the Secretary, and the decree of such court shall be final except that it shall be subject to review by the Supreme Court of the United States upon certiorari, as provided in section 1254 of title 28, if such writ is duly applied for within sixty days after entry of the decree. The issue of such writ shall not operate as a stay of the decree of the court of appeals, insofar as such decree operates as an injunction unless so ordered by the Supreme Court.
(Aug. 15, 1921, ch. 64, title II, §204, 42 Stat. 162; June 7, 1934, ch. 426, 48 Stat. 926; June 25, 1948, ch. 646, §32(a), 62 Stat. 991; May 24, 1949, ch. 139, §127, 63 Stat. 107; Pub. L. 85–791, §6(b), (c), Aug. 28, 1958, 72 Stat. 944; Pub. L. 98–620, title IV, §402(5), Nov. 8, 1984, 98 Stat. 3357; Pub. L. 107–171, title X, §10502(b)(1), May 13, 2002, 116 Stat. 509.)
Editorial Notes
Codification
Former subsec. (i), which extended the former term "circuit court of appeals", in case the principal place of business of the packer is in the District of Columbia, to the United States Court of Appeals for the District of Columbia, for the purposes of sections 191 to 195 of this title, was omitted from the Code as obsolete. The District of Columbia is a judicial circuit under sections 41 and 43 of Title 28, Judiciary and Judicial Procedure. See, also, Change of Name note below.
Amendments
2002—Subsecs. (a), (c), (g). Pub. L. 107–171 substituted "packer or swine contractor" for "packer" wherever appearing.
1984—Subsec. (d). Pub. L. 98–620 struck out provisions requiring proceedings in such cases in the court of appeals to be made a preferred cause and expedited in every way.
1958—Subsec. (b). Pub. L. 85–791 §6(b), substituted "thereupon file in the court" for "forthwith prepare, certify, and file in the court a full and accurate transcript of", and "as provided in section 2112 of Title 28" for "including the complaint, the evidence, and the report and order" in first sentence, and "record" for "transcript" in second sentence.
Subsec. (c). Pub. L. 85–791, §6(b), substituted "petition" for "transcript".
Subsec. (d). Pub. L. 85–791, §6(b), struck out "duly certified" after "admitted".
Subsec. (h). Pub. L. 85–791, §6(c), substituted "jurisdiction, which upon the finding of the record with it shall be exclusive," for "exclusive jurisdiction," and section "1254" for "347".
Statutory Notes and Related Subsidiaries
Change of Name
Act June 25, 1948, eff. Sept. 1, 1948, as amended May 24, 1949, substituted "court of appeals" for "circuit court of appeals", wherever appearing.
Act of June 7, 1934, provided that Court of Appeals in District of Columbia, should hereafter be known as the United States Court of Appeals for the District of Columbia.
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.
§195. Punishment for violation of order
Any packer or swine contractor, or any officer, director, agent, or employee of a packer or swine contractor, who fails to obey any order of the Secretary issued under the provisions of section 193 of this title, or such order as modified—
(1) After the expiration of the time allowed for filing a petition in the court of appeals to set aside or modify such order, if no such petition has been filed within such time; or
(2) After the expiration of the time allowed for applying for a writ of certiorari, if such order, or such order as modified, has been sustained by the court of appeals and no such writ has been applied for within such time; or
(3) After such order, or such order as modified, has been sustained by the courts as provided in section 194 of this title; shall on conviction be fined not less than $500 nor more than $10,000, or imprisoned for not less than six months nor more than five years, or both. Each day during which such failure continues shall be deemed a separate offense.
(Aug. 15, 1921, ch. 64, title II, §205, 42 Stat. 163; June 25, 1948, ch. 646, §32(a), 62 Stat. 991; May 24, 1949, ch. 139, §127, 63 Stat. 107; Pub. L. 107–171, title X, §10502(b)(1), May 13, 2002, 116 Stat. 509.)
Editorial Notes
Amendments
2002—Pub. L. 107–171 substituted "packer or swine contractor" for "packer" in two places in introductory provisions.
Statutory Notes and Related Subsidiaries
Change of Name
Act June 25, 1948, as amended by act May 24, 1949, substituted "court of appeals" for "circuit court of appeals", wherever appearing in this section.
§196. Statutory trust established; livestock
(a) Protection of public interest from inadequate financing arrangements
It is hereby found that a burden on and obstruction to commerce in livestock is caused by financing arrangements under which packers encumber, give lenders security interest in, or place liens on, livestock purchased by packers in cash sales, or on inventories of or receivables or proceeds from meat, meat food products, or livestock products therefrom, when payment is not made for the livestock and that such arrangements are contrary to the public interest. This section is intended to remedy such burden on and obstruction to commerce in livestock and protect the public interest.
(b) Livestock, inventories, receivables and proceeds held by packer in trust for benefit of unpaid cash sellers; time limitations; exempt packers; effect of dishonored instruments; preservation of trust benefits by seller
All livestock purchased by a packer in cash sales, and all inventories of, or receivables or proceeds from meat, meat food products, or livestock products derived therefrom, shall be held by such packer in trust for the benefit of all unpaid cash sellers of such livestock until full payment has been received by such unpaid sellers: Provided, That any packer whose average annual purchases do not exceed $500,000 will be exempt from the provisions of this section. Payment shall not be considered to have been made if the seller receives a payment instrument which is dishonored: Provided, That the unpaid seller shall lose the benefit of such trust if, in the event that a payment instrument has not been received, within thirty days of the final date for making a payment under section 228b of this title, or within fifteen business days after the seller has received notice that the payment instrument promptly presented for payment has been dishonored, the seller has not preserved his trust under this subsection. The trust shall be preserved by giving written notice to the packer and by filing such notice with the Secretary.
(c) Definition of cash sale
For the purpose of this section, a cash sale means a sale in which the seller does not expressly extend credit to the buyer.
(Aug. 15, 1921, ch. 64, title II, §206, as added Pub. L. 94–410, §8, Sept. 13, 1976, 90 Stat. 1251.)
§197. Statutory trust established; poultry
(a) Protection of public interest from inadequate financing arrangements
It is hereby found that a burden on and obstruction to commerce in poultry is caused by financing arrangements under which live poultry dealers encumber, give lenders security interest in, or place liens on, poultry obtained by such persons by purchase in cash sales or by poultry growing arrangements, or on inventories of or receivables or proceeds from such poultry or poultry products therefrom, when payment is not made for the poultry and that such financing arrangements are contrary to the public interest. This section is intended to remedy such burden on and obstruction to commerce in poultry and protect the public interest.
(b) Poultry, inventories, receivables and proceeds held by dealer in trust for benefit of unpaid cash sellers or poultry growers
All poultry obtained by a live poultry dealer, by purchase in cash sales or by poultry growing arrangement, and all inventories of, or receivables or proceeds from such poultry or poultry products derived therefrom, shall be held by such live poultry dealer in trust for the benefit of all unpaid cash sellers or poultry growers of such poultry, until full payment has been received by such unpaid cash sellers or poultry growers, unless such live poultry dealer does not have average annual sales of live poultry, or average annual value of live poultry obtained by purchase or by poultry growing arrangement, in excess of $100,000.
(c) Effect of dishonored instruments
Payment shall not be considered to have been made if the cash seller or poultry grower receives a payment instrument which is dishonored.
(d) Preservation of trust benefit by seller or poultry grower
The unpaid cash seller or poultry grower shall lose the benefit of such trust if, in the event that a payment instrument has not been received, within 30 days of the final date for making payment under section 228b–1 of this title, or within 15 business days after the seller or poultry grower has received notice that the payment instrument promptly presented for payment has been dishonored, the seller or poultry grower has not preserved his trust under this section. The trust shall be preserved by giving written notice to the live poultry dealer and by filing such notice with the Secretary.
(e) Definition of cash sale
For the purpose of this section, a cash sale means a sale in which the seller does not expressly extend credit to the buyer.
(Aug. 15, 1921, ch. 64, title II, §207, as added Pub. L. 100–173, §4, Nov. 23, 1987, 101 Stat. 918.)
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 90 days after Nov. 23, 1987, see section 12 of Pub. L. 100–173, set out as an Effective Date of 1987 Amendment note under section 182 of this title.
§197a. Production contracts
(a) Right of contract producers to cancel production contracts
(1) In general
A poultry grower or swine production contract grower may cancel a poultry growing arrangement or swine production contract by mailing a cancellation notice to the live poultry dealer or swine contractor not later than the later of—
(A) the date that is 3 business days after the date on which the poultry growing arrangement or swine production contract is executed; or
(B) any cancellation date specified in the poultry growing arrangement or swine production contract.
(2) Disclosure
A poultry growing arrangement or swine production contract shall clearly disclose—
(A) the right of the poultry grower or swine production contract grower to cancel the poultry growing arrangement or swine production contract;
(B) the method by which the poultry grower or swine production contract grower may cancel the poultry growing arrangement or swine production contract; and
(C) the deadline for canceling the poultry growing arrangement or swine production contract.
(b) Required disclosure of additional capital investments in production contracts
(1) In general
A poultry growing arrangement or swine production contract shall contain on the first page a statement identified as "Additional Capital Investments Disclosure Statement", which shall conspicuously state that additional large capital investments may be required of the poultry grower or swine production contract grower during the term of the poultry growing arrangement or swine production contract.
(2) Application
Paragraph (1) shall apply to any poultry growing arrangement or swine production contract entered into, amended, altered, modified, renewed, or extended after the date of the enactment of this section.
(Aug. 15, 1921, ch. 64, title II, §208, as added Pub. L. 110–234, title XI, §11005, May 22, 2008, 122 Stat. 1356, and Pub. L. 110–246, §4(a), title XI, §11005, June 18, 2008, 122 Stat. 1664, 2118.)
Editorial Notes
References in Text
The date of the enactment of this section, referred to in subsec. (b)(2), is the date of enactment of Pub. L. 110–246, which was approved June 18, 2008.
Codification
Pub. L. 110–234 and Pub. L. 110–246 enacted identical sections. Pub. L. 110–234 was repealed by section 4(a) of Pub. L. 110–246.
Section 11005 of Pub. L. 110–246, which directed amendment of title II of the Packers and Stockyards Act, 1921, by adding sections 208 to 210 at the end, was executed by adding the sections at the end of this part, which is subtitle A of title II of the Act, to reflect the probable intent of Congress.
Statutory Notes and Related Subsidiaries
Effective Date
Enactment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as a note under section 8701 of this title.
§197b. Choice of law and venue
(a) Location of forum
The forum for resolving any dispute among the parties to a poultry growing arrangement or swine production or marketing contract that arises out of the arrangement or contract shall be located in the Federal judicial district in which the principle part of the performance takes place under the arrangement or contract.
(b) Choice of law
A poultry growing arrangement or swine production or marketing contract may specify which State's law is to apply to issues governed by State law in any dispute arising out of the arrangement or contract, except to the extent that doing so is prohibited by the law of the State in which the principal part of the performance takes place under the arrangement or contract.
(Aug. 15, 1921, ch. 64, title II, §209, as added Pub. L. 110–234, title XI, §11005, May 22, 2008, 122 Stat. 1357, and Pub. L. 110–246, §4(a), title XI, §11005, June 18, 2008, 122 Stat. 1664, 2119.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 enacted identical sections. Pub. L. 110–234 was repealed by section 4(a) of Pub. L. 110–246.
Section 11005 of Pub. L. 110–246, which directed amendment of title II of the Packers and Stockyards Act, 1921, by adding sections 208 to 210 at the end, was executed by adding the sections at the end of this part, which is subtitle A of title II of the Act, to reflect the probable intent of Congress.
Statutory Notes and Related Subsidiaries
Effective Date
Enactment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as a note under section 8701 of this title.
§197c. Arbitration
(a) In general
Any livestock or poultry contract that contains a provision requiring the use of arbitration to resolve any controversy that may arise under the contract shall contain a provision that allows a producer or grower, prior to entering the contract 1 to decline to be bound by the arbitration provision.
(b) Disclosure
Any livestock or poultry contract that contains a provision requiring the use of arbitration shall contain terms that conspicuously disclose the right of the contract producer or grower, prior to entering the contract, to decline the requirement to use arbitration to resolve any controversy that may arise under the livestock or poultry contract.
(c) Dispute resolution
Any contract producer or grower that declines a requirement of arbitration pursuant to subsection (b) has the right,2 to nonetheless seek to resolve any controversy that may arise under the livestock or poultry contract, if, after the controversy arises, both parties consent in writing to use arbitration to settle the controversy.
(d) Application
Subsections (a) 1 (b) and (c) shall apply to any contract entered into, amended, altered, modified, renewed, or extended after the date of the enactment of the Food, Conservation, and Energy Act of 2008.
(e) Unlawful practice
Any action by or on behalf of a packer, swine contractor, or live poultry dealer that violates this section (including any action that has the intent or effect of limiting the ability of a producer or grower to freely make a choice described in subsection (b)) is an unlawful practice under this chapter.
(f) Regulations
The Secretary shall promulgate regulations to—
(1) carry out this section; and
(2) establish criteria that the Secretary will consider in determining whether the arbitration process provided in a contract provides a meaningful opportunity for the grower or producer to participate fully in the arbitration process.
(Aug. 15, 1921, ch. 64, title II, §210, as added Pub. L. 110–234, title XI, §11005, May 22, 2008, 122 Stat. 1357, and Pub. L. 110–246, §4(a), title XI, §11005, June 18, 2008, 122 Stat. 1664, 2119.)
Editorial Notes
References in Text
The date of the enactment of the Food, Conservation, and Energy Act of 2008, referred to in subsec. (d), is the date of enactment of Pub. L. 110–246, which was approved June 18, 2008.
Codification
Pub. L. 110–234 and Pub. L. 110–246 enacted identical sections. Pub. L. 110–234 was repealed by section 4(a) of Pub. L. 110–246.
Section 11005 of Pub. L. 110–246, which directed amendment of title II of the Packers and Stockyards Act, 1921, by adding sections 208 to 210 at the end, was executed by adding the sections at the end of this part, which is subtitle A of title II of the Act, to reflect the probable intent of Congress.
Statutory Notes and Related Subsidiaries
Effective Date
Enactment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as a note under section 8701 of this title.
1 So in original. A comma probably should appear.
2 So in original. The comma probably should not appear.
Part B—Swine Packer Marketing Contracts
Termination of Part
For termination of part by section 942 of Pub. L. 106–78, see Livestock Mandatory Reporting note set out under section 1635 of this title.
§198. Definitions
Except as provided in section 198b(a) of this title, in this part:
(1) Market
The term "market" means the sale or disposition of swine, pork, or pork products in commerce.
(2) Packer
The term "packer" has the meaning given the term in section 1635i of this title.
(3) Pork
The term "pork" means the meat of a porcine animal.
(4) Pork product
The term "pork product" means a product or byproduct produced or processed in whole or in part from pork.
(5) State
The term "State" means each of the 50 States.
(6) Swine
The term "swine" means a porcine animal raised to be a feeder pig, raised for seedstock, or raised for slaughter.
(7) Type of contract
The term "type of contract" means the classification of contracts or risk management agreements for the purchase of swine by—
(A) the mechanism used to determine the base price for swine committed to a packer, grouped into practicable classifications by the Secretary (including swine or pork market formula purchases, other market formula purchases, and other purchase arrangements); and
(B) the presence or absence of an accrual account or ledger that must be repaid by the producer or packer that receives the benefit of the contract pricing mechanism in relation to negotiated prices.
(8) Other terms
Except as provided in this part, a term has the meaning given the term in section 1635a or 1635i of this title.
(Aug. 15, 1921, ch. 64, title II, §221, as added Pub. L. 106–78, title IX, §934(2), Oct. 22, 1999, 113 Stat. 1208.)
Termination of Section
For termination of section by section 942 of Pub. L. 106–78, see Livestock Mandatory Reporting note set out under section 1635 of this title.
Statutory Notes and Related Subsidiaries
Termination Date
Section to terminate Dec. 20, 2024, see section 942 of Pub. L. 106–78, set out in a Livestock Mandatory Reporting note under section 1635 of this title.
§198a. Swine packer marketing contracts offered to producers
(a) In general
Subject to the availability of appropriations to carry out this section, the Secretary shall establish and maintain a library or catalog of each type of contract offered by packers to swine producers for the purchase of all or part of the producers' production of swine (including swine that are purchased or committed for delivery), including all available noncarcass merit premiums.
(b) Availability
The Secretary shall make available to swine producers and other interested persons information on the types of contracts described in subsection (a), including notice (on a real-time basis if practicable) of the types of contracts that are being offered by each individual packer to, and are open to acceptance by, producers for the purchase of swine.
(c) Confidentiality
The reporting requirements under subsections (a) and (b) shall be subject to the confidentiality protections provided under section 1636 of this title.
(d) Information collection
(1) In general
The Secretary shall—
(A) obtain (by a filing or other procedure required of each individual packer) information indicating what types of contracts for the purchase of swine are available from each packer; and
(B) make the information available in a monthly report to swine producers and other interested persons.
(2) Contracted swine numbers
Each packer shall provide, and the Secretary shall collect and publish in the monthly report required under paragraph (1)(B), information specifying—
(A) the types of existing contracts for each packer;
(B) the provisions contained in each contract that provide for expansion in the numbers of swine to be delivered under the contract for the following 6-month and 12-month periods;
(C) an estimate of the total number of swine committed by contract for delivery to all packers within the 6-month and 12-month periods following the date of the report, reported by reporting region and by type of contract; and
(D) an estimate of the maximum total number of swine that potentially could be delivered within the 6-month and 12-month periods following the date of the report under the provisions described in subparagraph (B) that are included in existing contracts, reported by reporting region and by type of contract.
(e) Violations
It shall be unlawful and a violation of this subchapter for any packer to willfully fail or refuse to provide to the Secretary accurate information required under, or to willfully fail or refuse to comply with any requirement of, this section.
(f) Authorization of appropriations
There are authorized to be appropriated such sums as necessary to carry out this section.
(Aug. 15, 1921, ch. 64, title II, §222, as added Pub. L. 106–78, title IX, §934(2), Oct. 22, 1999, 113 Stat. 1208.)
Termination of Section
For termination of section by section 942 of Pub. L. 106–78, see Livestock Mandatory Reporting note set out under section 1635 of this title.
Statutory Notes and Related Subsidiaries
Termination Date
Section to terminate Dec. 20, 2024, see section 942 of Pub. L. 106–78, set out in a Livestock Mandatory Reporting note under section 1635 of this title.
§198b. Report on the Secretary's jurisdiction, power, duties, and authorities
(a) Definition of packer
In this section, the term "packer" has the meaning given the term in section 191 of this title.
(b) Report
Not later than 90 days after October 22, 1999, the Comptroller General of the United States shall provide to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate a report describing the jurisdiction, powers, duties, and authorities of the Secretary that relate to packers and other persons involved in procuring, slaughtering, or processing swine, pork, or pork products that are covered by this Act and other laws, including—
(1) the Federal Trade Commission Act (15 U.S.C. 41 et seq.), especially sections 6, 8, 9, and 10 of that Act (15 U.S.C. 46, 48, 49, and 50); and
(2) the Agricultural Marketing Act of 1946 (7 U.S.C. 1621 et seq.).
(c) Contents
The Comptroller General shall include in the report an analysis of—
(1) burdens on and obstructions to commerce in swine, pork, and pork products by packers, and other persons that enter into arrangements with the packers, that are contrary to, or do not protect, the public interest;
(2) noncompetitive pricing arrangements between or among packers, or other persons involved in the processing, distribution, or sale of pork and pork products, including arrangements provided for in contracts for the purchase of swine;
(3) the effective monitoring of contracts entered into between packers and swine producers;
(4) investigations that relate to, and affect, the disclosure of—
(A) transactions involved in the business conduct and practices of packers; and
(B) the pricing of swine paid to producers by packers and the pricing of products in the pork and pork product merchandising chain;
(5) the adequacy of the authority of the Secretary to prevent a packer from unjustly or arbitrarily refusing to offer a producer, or disqualifying a producer from eligibility for, a particular contract or type of contract for the purchase of swine; and
(6) the ability of the Secretary to cooperate with and enhance the enforcement of actions initiated by other Federal departments and agencies, or Federal independent agencies, to protect trade and commerce in the pork and pork product industries against unlawful restraints and monopolies.
(Aug. 15, 1921, ch. 64, title II, §223, as added Pub. L. 106–78, title IX, §934(2), Oct. 22, 1999, 113 Stat. 1209.)
Termination of Section
For termination of section by section 942 of Pub. L. 106–78, see Livestock Mandatory Reporting note set out under section 1635 of this title.
Editorial Notes
References in Text
The Federal Trade Commission Act, referred to in subsec. (b)(1), is act Sept. 26, 1914, ch. 311, 38 Stat. 717, which is classified generally to subchapter I (§41 et seq.) of chapter 2 of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 58 of Title 15 and Tables.
The Agricultural Marketing Act of 1946, referred to in subsec. (b)(2), is title II of act Aug. 14, 1946, ch. 966, 60 Stat. 1087, which is classified generally to chapter 38 (§1621 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1621 of this title and Tables.
Statutory Notes and Related Subsidiaries
Termination Date
Section to terminate Dec. 20, 2024, see section 942 of Pub. L. 106–78, set out in a Livestock Mandatory Reporting note under section 1635 of this title.
SUBCHAPTER III—STOCKYARDS AND STOCKYARD DEALERS
§201. "Stockyard owner"; "stockyard services"; "market agency"; "dealer"; defined
In this chapter:
(a) The term "stockyard owner" means any person engaged in the business of conducting or operating a stockyard.
(b) The term "stockyard services" means services or facilities furnished at a stockyard in connection with the receiving, buying, or selling on a commission basis or otherwise, marketing, feeding, watering, holding, delivery, shipment, weighing, or handling in commerce, of livestock.
(c) The term "market agency" means any person engaged in the business of (1) buying or selling in commerce livestock on a commission basis or (2) furnishing stockyard services. Beginning on October 7, 2016, such term includes any person who engages in the business of buying or selling livestock, on a commission or other fee basis, through the use of online, video, or other electronic methods when handling or providing the means to handle receivables or proceeds from such buying or selling, so long as such person's annual average of online, video, or electronic sales of livestock, on a commission or other fee basis, exceeds $250,000.
(d) The term "dealer" means any person, not a market agency, engaged in the business of buying or selling in commerce livestock, either on his own account or as the employee or agent of the vendor or purchaser.
(Aug. 15, 1921, ch. 64, title III, §301, 42 Stat. 163; Pub. L. 85–909, §2(1), Sept. 2, 1958, 72 Stat. 1750; Pub. L. 94–410, §3(c), Sept. 13, 1976, 90 Stat. 1249; Pub. L. 114–237, §2, Oct. 7, 2016, 130 Stat. 970.)
Editorial Notes
Amendments
2016—Pub. L. 114–237, §2(b)(1), substituted "In this chapter:" for "When used in this chapter—" in introductory provisions.
Subsec. (a). Pub. L. 114–237, §2(b)(2), substituted period for semicolon at end.
Subsec. (b). Pub. L. 114–237, §2(b)(3)(B), substituted period for semicolon at end.
Pub. L. 114–237, §2(b)(3)(A), which directed amendment of subsec. (b) by substituting "weighing" for "weighting", could not be executed because the word "weighing" already appeared in text.
Subsec. (c). Pub. L. 114–237, §2(a), substituted period for "; and" after "stockyard services" and inserted at end "Beginning on October 7, 2016, such term includes any person who engages in the business of buying or selling livestock, on a commission or other fee basis, through the use of online, video, or other electronic methods when handling or providing the means to handle receivables or proceeds from such buying or selling, so long as such person's annual average of online, video, or electronic sales of livestock, on a commission or other fee basis, exceeds $250,000."
1976—Subsecs. (b) to (d). Pub. L. 94–410 substituted "livestock" for "live stock".
1958—Subsecs. (c), (d). Pub. L. 85–909 struck out "at a stockyard" after "livestock".
§202. "Stockyard" defined; determination by Secretary as to particular yard
(a) When used in this subchapter the term "stockyard" means any place, establishment, or facility commonly known as stockyards, conducted, operated, or managed for profit or nonprofit as a public market for livestock producers, feeders, market agencies, and buyers, consisting of pens, or other inclosures, and their appurtenances, in which live cattle, sheep, swine, horses, mules, or goats are received, held, or kept for sale or shipment in commerce.
(b) The Secretary shall from time to time ascertain, after such inquiry as he deems necessary, the stockyards which come within the foregoing definition, and shall give notice thereof to the stockyard owners concerned, and give public notice thereof by posting copies of such notice in the stockyard, and in such other manner as he may determine. After the giving of such notice to the stockyard owner and to the public, the stockyard shall remain subject to the provisions of this subchapter until like notice is given by the Secretary that such stockyard no longer comes within the foregoing definition.
(Aug. 15, 1921, ch. 64, title III, §302, 42 Stat. 163; Pub. L. 85–909, §2(2), Sept. 2, 1958, 72 Stat. 1750; Pub. L. 90–446, §1(a), July 31, 1968, 82 Stat. 474.)
Editorial Notes
Amendments
1968—Subsec. (a). Pub. L. 90–446 substituted "operated, or managed for profit or nonprofit as a public market for livestock producers, feeders, market agencies, and buyers" for "or operated for compensation or profit as a public market".
1958—Subsec. (a). Pub. L. 85–909 struck out "Said sections shall not apply to a stockyard of which the area normally available for handling livestock, exclusive of runs, alleys, or passage ways, is less than twenty thousand square feet."
Statutory Notes and Related Subsidiaries
Transportation of Livestock
Pub. L. 85–909, §2(2), Sept. 2, 1958, 72 Stat. 1750, provided in part: "That nothing herein [this section] shall be deemed a definition of the term 'public stockyards' as used in section 15(5) of the Interstate Commerce Act [former 49 U.S.C. 15(5)]".
§203. Activity as stockyard dealer or market agency; benefits to business and welfare of stockyard; registration; penalty for failure to register
After the expiration of thirty days after the Secretary has given public notice that any stockyard is within the definition of section 202 of this title, by posting copies of such notice in the stockyard, no person shall carry on the business of a market agency or dealer at such stockyard unless (1) the stockyard owner has determined that his services will be beneficial to the business and welfare of said stockyard, its patrons, and customers, which determination shall be made on a basis which is not unreasonable or unjustly discriminatory, and has given written authorization to such person, and (2) he has registered with the Secretary, under such rules and regulations as the Secretary may prescribe, his name and address, the character of business in which he is engaged, and the kinds of stockyards services, if any, which he furnishes at such stockyard. Every other person operating as a market agency or dealer as defined in section 201 of this title may be required to register in such manner as the Secretary may prescribe. Whoever violates the provisions of this section shall be liable to a penalty of not more than $500 for each such offense and not more than $25 for each day it continues, which shall accrue to the United States and may be recovered in a civil action brought by the United States.
(Aug. 15, 1921, ch. 64, title III, §303, 42 Stat. 163; Pub. L. 85–909, §2(3), Sept. 2, 1958, 72 Stat. 1750; Pub. L. 90–446, §1(b), July 31, 1968, 82 Stat. 474.)
Editorial Notes
Amendments
1968—Pub. L. 90–446 designated existing provisions as cl. (2) and added cl. (1).
1958—Pub. L. 85–909 inserted "Every other person operating as a market agency or dealer as defined in section 201 of this title may be required to register in such manner as the Secretary may prescribe."
§204. Bond and suspension of registrants
On and after July 12, 1943, the Secretary may require reasonable bonds from every market agency (as defined in this subchapter), every packer (as defined in subchapter II of this chapter) in connection with its livestock purchasing operations (except that those packers whose average annual purchases do not exceed $500,000 will be exempt from the provisions of this paragraph), and every other person operating as a dealer (as defined in this subchapter) under such rules and regulations as he may prescribe, to secure the performance of their obligations, and whenever, after due notice and hearing, the Secretary finds any registrant is insolvent or has violated any provisions of this chapter he may issue an order suspending such registrant for a reasonable specified period. Such order of suspension shall take effect within not less than five days, unless suspended or modified or set aside by the Secretary or a court of competent jurisdiction. If the Secretary finds any packer is insolvent, he may after notice and hearing issue an order under the provisions of section 193 of this title requiring such packer to cease and desist from purchasing livestock while insolvent, or while insolvent purchasing livestock except under such conditions as the Secretary may prescribe to effectuate the purposes of this chapter.
(July 12, 1943, ch. 215, 57 Stat. 422; Pub. L. 94–410, §§1, 4, Sept. 13, 1976, 90 Stat. 1249.)
Editorial Notes
Codification
Section was enacted as part of the Department of Agriculture Appropriation Act, 1944, act July 12, 1943, and not as part of the Packers and Stockyards Act, 1921, which comprises this chapter.
Amendments
1976—Pub. L. 94–410 inserted provisions exempting market agencies and packers whose average annual purchases do not exceed $500,000 from bonding requirement and authorizing Secretary, after notice and hearing, to issue cease and desist orders to insolvent packers prohibiting the purchase of livestock except under conditions prescribed by Secretary, respectively.
Prior Provisions
Provisions similar to those in this section were contained in the following prior appropriation acts:
July 22, 1942, ch. 516, 56 Stat. 689.
July 1, 1941, ch. 267, 55 Stat. 432.
June 25, 1940, ch. 421, 54 Stat. 557.
June 30, 1939, ch. 253, title I, 53 Stat. 970.
June 16, 1938, ch. 464, title I, 52 Stat. 721.
June 29, 1937, ch. 404, 50 Stat. 406.
June 4, 1936, ch. 489, 49 Stat. 1432.
May 17, 1935, ch. 131, title I, 49 Stat. 257.
Mar. 26, 1934, ch. 89, 48 Stat. 477.
Mar. 3, 1933, ch. 203, 47 Stat. 1441.
July 7, 1932, ch. 443, 47 Stat. 620.
Feb. 23, 1931, ch. 278, 46 Stat. 1252.
May 27, 1930, ch. 341, 46 Stat. 402.
Feb. 16, 1929, ch. 227, 45 Stat. 1198.
May 16, 1928, ch. 572, 45 Stat. 547.
Jan. 18, 1927, ch. 39, 44 Stat. 1002.
May 11, 1926, ch. 286, 44 Stat. 527.
Feb. 10, 1925, ch. 200, 43 Stat. 851.
June 5, 1924, ch. 266, 43 Stat. 460.
§205. General duty as to services; revocation of registration
All stockyard services furnished pursuant to reasonable request made to a stockyard owner or market agency at such stockyard shall be reasonable and nondiscriminatory and stockyard services which are furnished shall not be refused on any basis that is unreasonable or unjustly discriminatory: Provided, That in any State where the weighing of livestock at a stockyard is conducted by a duly authorized department or agency of the State, the Secretary, upon application of such department or agency, may register it as a market agency for the weighing of livestock received in such stockyard, and upon such registration such department or agency and the members thereof shall be amenable to all the requirements of this chapter, and upon failure of such department or agency or the members thereof to comply with the orders of the Secretary under this chapter he is authorized to revoke the registration of such department or agency and to enforce such revocation as provided in section 216 of this title.
(Aug. 15, 1921, ch. 64, title III, §304, 42 Stat. 164; May 5, 1926, ch. 240, 44 Stat. 397; Pub. L. 90–446, §1(c), July 31, 1968, 82 Stat. 474.)
Editorial Notes
Amendments
1968—Pub. L. 90–446 inserted provision requiring that stockyard services which are furnished not be refused on any basis that is unreasonable or unjustly discriminatory.
1926—Act May 5, 1926, inserted proviso.
§206. Rates and charges generally; discrimination
All rates or charges made for any stockyard services furnished at a stockyard by a stockyard owner or market agency shall be just, reasonable, and nondiscriminatory, and any unjust, unreasonable, or discriminatory rate or charge is prohibited and declared to be unlawful: Provided, That rates and charges based upon percentages of the gross sales prices of livestock shall not be prohibited merely because they are based upon such percentages rather than on a per head basis.
(Aug. 15, 1921, ch. 64, title III, §305, 42 Stat. 164; Pub. L. 95–409, §1(a), Oct. 2, 1978, 92 Stat. 886.)
Editorial Notes
Amendments
1978—Pub. L. 95–409 inserted proviso that rates and charges based upon percentages of gross sales of livestock shall not be prohibited merely because based on such percentages rather than on a per head basis.
§207. Schedule of rates
(a) Filing; public inspection
Within sixty days after the Secretary has given public notice that a stockyard is within the definition of section 202 of this title, by posting copies of such notice in the stockyard, the stockyard owner and every market agency at such stockyard shall file with the Secretary, and print and keep open to public inspection at the stockyard, schedules showing all rates and charges for the stockyard services furnished by such person at such stockyard. If a market agency commences business at the stockyard after the expiration of such sixty days such schedules must be filed before any stockyard services are furnished.
(b) Detail required; form
Such schedules shall plainly state all such rates and charges in such detail as the Secretary may require, and shall also state any rules or regulations which in any manner change, affect, or determine any part or the aggregate of such rates or charges, or the value of the stockyard services furnished. The Secretary may determine and prescribe the form and manner in which such schedules shall be prepared, arranged, and posted, and may from time to time make such changes in respect thereto as may be found expedient.
(c) Changes
No changes shall be made in the rates or charges so filed and published, except after ten days' notice to the Secretary and to the public filed and published as aforesaid, which shall plainly state the changes proposed to be made and the time such changes will go into effect; but the Secretary may, for good cause shown, allow changes on less than ten days' notice, or modify the requirements of this section in respect to publishing, posting, and filing of schedules, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions.
(d) Rejection by Secretary
The Secretary may reject and refuse to file any schedule tendered for filing which does not provide and give lawful notice of its effective date, and any schedule so rejected by the Secretary shall be void and its use shall be unlawful.
(e) Determination of lawfulness; hearing; suspension
Whenever there is filed with the Secretary any schedule, stating a new rate or charge, or a new regulation or practice affecting any rate or charge, the Secretary may either upon complaint or upon his own initiative without complaint, at once, and if he so orders without answer or other formal pleading by the person filing such schedule, but upon reasonable notice, enter upon a hearing concerning the lawfulness of such rate, charge, regulation, or practice, and pending such hearing and decision thereon the Secretary, upon filing with such schedule and delivering to the person filing it a statement in writing of his reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, regulation, or practice, but not for a longer period than thirty days beyond the time when it would otherwise go into effect; and after full hearing, whether completed before or after the rate, charge, regulation, or practice goes into effect, the Secretary may make such order with reference thereto as would be proper in a proceeding initiated after it had become effective. If any such hearing cannot be concluded within the period of suspension the Secretary may extend the time of suspension for a further period not exceeding thirty days, and if the proceeding has not been concluded and an order made at the expiration of such thirty days, the proposed change of rate, charge, regulation, or practice shall go into effect at the end of such period.
(f) Suspension of operations; compliance
After the expiration of the sixty days referred to in subsection (a) 1 no person shall carry on the business of a stockyard owner or market agency unless the rates and charges for the stockyard services furnished at the stockyard have been filed and published in accordance with this section and the orders of the Secretary made thereunder; nor charge, demand, or collect a greater or less or different compensation for such services than the rates and charges specified in the schedules filed and in effect at the time; nor refund or remit in any manner any portion of the rates or charges so specified (but this shall not prohibit a cooperative association of producers from bona fide returning to its members, on a patronage basis, its excess earnings on their livestock, subject to such regulations as the Secretary may prescribe); nor extend to any person at such stockyard any stockyard services except such as are specified in such schedules.
(g) Penalty
Whoever fails to comply with the provisions of this section or of any regulation or order of the Secretary made thereunder shall be liable to a penalty of not more than $500 for each such offense, and not more than $25 for each day it continues, which shall accrue to the United States and may be recovered in a civil action brought by the United States.
(h) Intentional violations; penalty
Whoever willfully fails to comply with the provisions of this section or of any regulation or order of the Secretary made thereunder shall on conviction be fined not more than $1,000, or imprisoned not more than one year, or both.
(Aug. 15, 1921, ch. 64, title III, §306, 42 Stat. 164; Pub. L. 94–410, §3(c), Sept. 13, 1976, 90 Stat. 1249.)
Editorial Notes
Amendments
1976—Subsec. (f). Pub. L. 94–410 substituted "livestock" for "live stock" after "earnings on their".
1 So in original. Probably should be followed by a comma.
§208. Unreasonable or discriminatory practices generally; rights of stockyard owner of management and regulation
(a) It shall be the duty of every stockyard owner and market agency to establish, observe, and enforce just, reasonable, and nondiscriminatory regulations and practices in respect to the furnishing of stockyard services, and every unjust, unreasonable, or discriminatory regulation or practice is prohibited and declared to be unlawful.
(b) It shall be the responsibility and right of every stockyard owner to manage and regulate his stockyard in a just, reasonable, and nondiscriminatory manner, to prescribe rules and regulations and to require those persons engaging in or attempting to engage in the purchase, sale, or solicitation of livestock at such stockyard to conduct their operations in a manner which will foster, preserve, or insure an efficient, competitive public market. Such rules and regulations shall not prevent a registered market agency or dealer from rendering service on other markets or in occasional and incidental off-market transactions.
(Aug. 15, 1921, ch. 64, title III, §307, 42 Stat. 165; Pub. L. 90–446, §1(d), July 31, 1968, 82 Stat. 475.)
Editorial Notes
Amendments
1968—Pub. L. 90–446 designated existing provisions as subsec. (a) and added subsec. (b).
§209. Liability to individuals for violations; enforcement generally
(a) If any person subject to this chapter violates any of the provisions of this chapter, or of any order of the Secretary under this chapter, relating to the purchase, sale, or handling of livestock, the purchase or sale of poultry, or relating to any poultry growing arrangement or swine production contract, he shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of such violation.
(b) Such liability may be enforced either (1) by complaint to the Secretary as provided in section 210 of this title, or (2) by suit in any district court of the United States of competent jurisdiction; but this section shall not in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.
(Aug. 15, 1921, ch. 64, title III, §308, 42 Stat. 165; Pub. L. 94–410, §6, Sept. 13, 1976, 90 Stat. 1250; Pub. L. 100–173, §5, Nov. 23, 1987, 101 Stat. 918; Pub. L. 107–171, title X, §10502(b)(2)(B), May 13, 2002, 116 Stat. 510.)
Editorial Notes
Amendments
2002—Subsec. (a). Pub. L. 107–171 inserted "or swine production contract" after "poultry growing arrangement".
1987—Subsec. (a). Pub. L. 100–173 inserted "the purchase or sale of poultry, or relating to any poultry growing arrangement," after "livestock,".
1976—Subsec. (a). Pub. L. 94–410 struck out references to violations of specific sections and added packers to categories of regulated persons against whom private action could be brought for violation of chapter.
Statutory Notes and Related Subsidiaries
Effective Date of 1987 Amendment
Amendment by Pub. L. 100–173 effective 90 days after Nov. 23, 1987, see section 12 of Pub. L. 100–173, set out as a note under section 182 of this title.
§210. Proceedings before Secretary for violations
(a) Complaint; response; satisfaction or investigation
Any person complaining of anything done or omitted to be done by any stockyard owner, market agency, or dealer (hereinafter in this section referred to as the "defendant") in violation of the provisions of this subchapter, or of an order of the Secretary made under this subchapter, may, at any time within ninety days after the cause of action accrues, apply to the Secretary by petition which shall briefly state the facts, whereupon the complaint thus made shall be forwarded by the Secretary to the defendant, who shall be called upon to satisfy the complaint, or to answer it in writing, within a reasonable time to be specified by the Secretary. If the defendant within the time specified makes reparation for the injury alleged to be done he shall be relieved of liability to the complainant only for the particular violation thus complained of. If the defendant does not satisfy the complaint within the time specified, or there appears to be any reasonable ground for investigating the complaint, it shall be the duty of the Secretary to investigate the matters complained of in such manner and by such means as he deems proper.
(b) Complaints forwarded by agencies of a State or Territory
The Secretary, at the request of the livestock commissioner, board of agriculture, or other agency of a State or Territory, having jurisdiction over stockyards in such State or Territory, shall investigate any complaint forwarded by such agency in like manner and with the same authority and powers as in the case of a complaint made under subsection (a).
(c) Inquiries instituted by Secretary
The Secretary may at any time institute an inquiry on his own motion, in any case and as to any matter or thing concerning which a complaint is authorized to be made to or before the Secretary, by any provision of this subchapter, or concerning which any question may arise under any of the provisions of this subchapter, or relating to the enforcement of any of the provisions of this subchapter. The Secretary shall have the same power and authority to proceed with any inquiry instituted upon his own motion as though he had been appealed to by petition, including the power to make and enforce any order or orders in the case or relating to the matter or thing concerning which the inquiry is had, except orders for the payment of money.
(d) Damage to complainant not required
No complaint shall at any time be dismissed because of the absence of direct damage to the complainant.
(e) Award and payment of damages
If after hearing on a complaint the Secretary determines that the complainant is entitled to an award of damages, the Secretary shall make an order directing the defendant to pay to the complainant the sum to which he is entitled on or before a day named.
(f) Enforcement of orders
If the defendant does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may within one year of the date of the order file in the district court of the United States for the district in which he resides or in which is located the principal place of business of the defendant or in any State court having general jurisdiction of the parties, a petition setting forth briefly the causes for which he claims damages, and the order of the Secretary in the premises. Such suit in the district court shall proceed in all respects like other civil suits for damages except that the findings and orders of the Secretary shall be prima facie evidence of the facts therein stated, and the petitioner shall not be liable for costs in the district court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the petitioner finally prevails, he shall be allowed a reasonable attorney's fee to be taxed and collected as a part of the costs of the suit.
(Aug. 15, 1921, ch. 64, title III, §309, 42 Stat. 165; Pub. L. 94–410, §3(c), Sept. 13, 1976, 90 Stat. 1249.)
Editorial Notes
Amendments
1976—Subsec. (b). Pub. L. 94–410 substituted "livestock" for "live-stock" after "request of the".
§211. Order of Secretary as to charges or practices; prescribing rates and practices generally
Whenever after full hearing upon a complaint made as provided in section 210 of this title, or after full hearing under an order for investigation and hearing made by the Secretary on his own initiative, either in extension of any pending complaint or without any complaint whatever, the Secretary is of the opinion that any rate, charge, regulation, or practice of a stockyard owner or market agency, for or in connection with the furnishing of stockyard services, is or will be violative of section 205, 206, or 208 of this title, the Secretary—
(a) May in accordance with the standard set forth in section 206 of this title determine and prescribe what will be the rate or charge, or rates or charges, to be thereafter in such case observed as the maximum or minimum or both to be charged, and what regulation or practice is or will be just, reasonable, and nondiscriminatory to be thereafter followed: Provided, That the Secretary shall prescribe the rate or charge, or rates or charges, on a percentage or per head basis at the election of the stockyard owner or market agency, or on any other basis elected by the stockyard owner or market agency unless the Secretary finds such other basis to be violative of section 206 of this title; and
(b) May make an order that such owner or operator (1) shall cease and desist from such violation to the extent to which the Secretary finds that it does or will exist; (2) shall not thereafter publish, demand, or collect any rate or charge for the furnishing of stockyard services other than the rate or charge or rates or charges so prescribed; and (3) shall conform to and observe the regulation or practice so prescribed.
(Aug. 15, 1921, ch. 64, title III, §310, 42 Stat. 166; Aug. 10, 1939, ch. 663, 53 Stat. 1351; Pub. L. 95–409, §1(b), Oct. 2, 1978, 92 Stat. 886.)
Editorial Notes
Amendments
1978—Pub. L. 95–409, §1(b)(1), in provision preceding subsec. (a), substituted "violative of section 205, 206 or 208 of this title" for "unjust, unreasonable, or discriminatory".
Subsec. (a). Pub. L. 95–409, §1(b)(2), substituted "May in accordance with the standard set forth in section 206 of this title determine and prescribe what will be the rate" for "May determine and prescribe what will be the just and reasonable rate", and "as the maximum or minimum or both" for "as both the maximum and minimum", and inserted proviso relating to prescription by the Secretary of rates or charges on a percentage or per head basis at the election of the owner or agency or any other basis unless violative of section 206 of this title.
Subsec. (b). Pub. L. 95–409, §1(b)(3), substituted "other than the rate or charge or rates or charges" for "more or less than the rate or charge".
1939—Subsec. (a). Act Aug. 10, 1939, substituted "as both" for "or the".
Subsec. (b)(2). Act Aug. 10, 1939, substituted "more or less than the rate or charge so prescribed" for "other than the rate or charge so prescribed, or in excess of the maximum or less than the minimum so prescribed, as the case may be".
§212. Prescribing rates and practices to prevent discrimination between intrastate and interstate commerce
Whenever in any investigation under the provisions of this subchapter, or in any investigation instituted by petition of the stockyard owner, market agency, or dealer concerned, which petition is authorized to be filed, the Secretary after full hearing finds that any rate, charge, regulation, or practice of any stockyard owner, market agency, or dealer, for or in connection with the buying or selling on a commission basis or otherwise, receiving, marketing, feeding, holding, delivery, shipment, weighing, or handling, not in commerce, of livestock, causes any undue or unreasonable advantage, prejudice, or preference as between persons or localities in intrastate commerce in livestock on the one hand and interstate or foreign commerce in livestock on the other hand, or any undue, unjust, or unreasonable discrimination against interstate or foreign commerce in livestock, which is hereby forbidden and declared to be unlawful, the Secretary shall prescribe the rate, charge, regulation, or practice thereafter to be observed, in such manner as, in his judgment, will remove such advantage, preference, or discrimination. Such rates, charges, regulations, or practices shall be observed while in effect by the stockyard owners, market agencies, or dealers parties to such proceeding affected thereby, the law of any State or the decision or order of any State authority to the contrary notwithstanding.
(Aug. 15, 1921, ch. 64, title III, §311, 42 Stat. 167; Pub. L. 85–909, §2(4), Sept. 2, 1958, 72 Stat. 1750; Pub. L. 94–410, §3(c), Sept. 13, 1976, 90 Stat. 1249.)
Editorial Notes
Amendments
1976—Pub. L. 94–410 substituted "livestock" for "live stock" wherever appearing.
1958—Pub. L. 85–909 substituted "stockyard owner, market agency, or dealer" for "stockyard owner or market agency" wherever occurring, and "stockyard owners, market agencies, or dealers" for "stockyard owners or market agencies".
§213. Prevention of unfair, discriminatory, or deceptive practices
(a) It shall be unlawful for any stockyard owner, market agency, or dealer to engage in or use any unfair, unjustly discriminatory, or deceptive practice or device in connection with determining whether persons should be authorized to operate at the stockyards, or with the receiving, marketing, buying, or selling on a commission basis or otherwise, feeding, watering, holding, delivery, shipment, weighing, or handling of livestock.
(b) Whenever complaint is made to the Secretary by any person, or whenever the Secretary has reason to believe, that any stockyard owner, market agency, or dealer is violating the provisions of subsection (a), the Secretary after notice and full hearing may make an order that he shall cease and desist from continuing such violation to the extent that the Secretary finds that it does or will exist. The Secretary may also assess a civil penalty of not more than $10,000 for each such violation. In determining the amount of the civil penalty to be assessed under this section, the Secretary shall consider the gravity of the offense, the size of the business involved, and the effect of the penalty on the person's ability to continue in business. If, after the lapse of the period allowed for appeal or after the affirmance of such penalty, the person against whom the civil penalty is assessed fails to pay such penalty, the Secretary may refer the matter to the Attorney General who may recover such penalty by an action in the appropriate district court of the United States.
(Aug. 15, 1921, ch. 64, title III, §312, 42 Stat. 167; Pub. L. 85–909, §2(5), Sept. 2, 1958, 72 Stat. 1750; Pub. L. 90–446, §1(e), July 31, 1968, 82 Stat. 475; Pub. L. 94–410, §3, Sept. 13, 1976, 90 Stat. 1249.)
Editorial Notes
Amendments
1976—Subsec. (a). Pub. L. 94–410, §3(a), (c), struck out "in commerce" after "or handling" and substituted "livestock" for "live stock".
Subsec. (b). Pub. L. 94–410, §3(b), inserted provisions dealing with authority of Secretary to assess a civil penalty for violations and, upon failure to pay, procedure for recovery of such penalty.
1968—Subsec. (a). Pub. L. 90–446 inserted "determining whether persons should be authorized to operate at stockyards, or with" after "in connection with".
1958—Subsec. (a). Pub. L. 85–909 struck out "at a stockyard" after "in commerce".
§214. Effective date of orders
Except as otherwise provided in this chapter all orders of the Secretary under this subchapter, other than orders for the payment of money, shall take effect within such reasonable time, not less than five days, as is prescribed in the order, and shall continue in force until his further order, or for a specified period of time, according as is prescribed in the order, unless such order is suspended or modified or set aside by the Secretary or is suspended or set aside by a court of competent jurisdiction.
(Aug. 15, 1921, ch. 64, title III, §313, 42 Stat. 167.)
§215. Failure to obey orders; punishment
(a) Any stockyard owner, market agency, or dealer who knowingly fails to obey any order made under the provisions of sections 211, 212, or 213 of this title shall forfeit to the United States the sum of $500 for each offense. Each distinct violation shall be a separate offense, and in case of a continuing violation each day shall be deemed a separate offense. Such forfeiture shall be recoverable in a civil suit in the name of the United States.
(b) It shall be the duty of the various United States attorneys, under the direction of the Attorney General, to prosecute for the recovery of forfeitures. The costs and expense of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States.
(Aug. 15, 1921, ch. 64, title III, §314, 42 Stat. 167; June 25, 1948, ch. 646, §1, 62 Stat. 909.)
Statutory Notes and Related Subsidiaries
Change of Name
Act June 25, 1948, eff. Sept. 1, 1948, substituted "United States attorneys" for "district attorneys" in subsec. (a). See section 541 of Title 28, Judiciary and Judicial Procedure, and Historical and Revision Notes thereunder.
§216. Proceedings to enforce orders; injunction
If any stockyard owner, market agency, or dealer fails to obey any order of the Secretary other than for the payment of money while the same is in effect, the Secretary, or any party injured thereby, or the United States by its Attorney General, may apply to the district court for the district in which such person has his principal place of business for the enforcement of such order. If after hearing the court determines that the order was lawfully made and duly served and that such person is in disobedience of the same, the court shall enforce obedience to such order by a writ of injunction or other proper process, mandatory or otherwise, to restrain such person, his officers, agents, or representatives from further disobedience of such order or to enjoin upon him or them obedience to the same.
(Aug. 15, 1921, ch. 64, title III, §315, 42 Stat. 167.)
Court Rules
Federal Rules of Civil Procedure
Injunctions, see rule 65, Title 28, Appendix, Judiciary and Judicial Procedure.
§217. Proceedings for suspension of orders
For the purposes of this subchapter, the provisions of all laws relating to the suspending or restraining the enforcement, operation, or execution of, or the setting aside in whole or in part the orders of the Interstate Commerce Commission, are made applicable to the jurisdiction, powers, and duties of the Secretary in enforcing the provisions of this subchapter, and to any person subject to the provisions of this subchapter.
(Aug. 15, 1921, ch. 64, title III, §316, 42 Stat. 168.)
Statutory Notes and Related Subsidiaries
Abolition of Interstate Commerce Commission and Transfer of Functions
Interstate Commerce Commission abolished and functions of Commission transferred, except as otherwise provided in Pub. L. 104–88, to Surface Transportation Board effective Jan. 1, 1996, by section 1302 of Title 49, Transportation, and section 101 of Pub. L. 104–88, set out as a note under section 1301 of Title 49. References to Interstate Commerce Commission deemed to refer to Surface Transportation Board, a member or employee of the Board, or Secretary of Transportation, as appropriate, see section 205 of Pub. L. 104–88, set out as a note under section 1301 of Title 49.
§217a. Fees for inspection of brands or marks
(a) Authorization by Secretary; registration as market agency
The Secretary may, upon written application made to him, and if he deems it necessary, authorize the charging and collection, at any stockyard subject to the provisions of this chapter, by any department or agency of any State in which branding or marking or both branding and marking livestock as a means of establishing ownership prevails by custom or statute, or by a duly organized livestock association of any such State, of a reasonable and nondiscriminatory fee for the inspection of brands, marks, and other identifying characteristics of livestock originating in or shipped from such State, for the purpose of determining the ownership of such livestock. No charge shall be made under any such authorization until the authorized department, agency, or association has registered as a market agency. No more than one such authorization shall be issued with respect to such inspection of livestock originating in or shipped from any one State. If more than one such application is filed with respect to such inspection of livestock originating in or shipped from any one State, the Secretary shall issue such authorization to the applicant deemed by him best qualified to perform the proposed service, on the basis of (1) experience, (2) financial responsibility, (3) extent and efficiency of organization, (4) possession of necessary records, and (5) any other factor relating to the ability of the applicant to perform the proposed service. The Secretary may receive and consider the recommendations of the commissioner, secretary, or director of agriculture, or other appropriate officer or agency of a State as to the qualifications of any applicant in such State. The decision of the Secretary as to the applicant best qualified shall be final.
(b) Applicability of section
The provisions of this subchapter, relating to the filing, publication, approval, modification, and suspension of any rate or charge for any stockyard service shall apply with respect to charges authorized to be made under this section.
(c) Collection and payment of charges
Charges authorized to be made under this section shall be collected by the market agency or other person receiving and disbursing the funds received from the sale of livestock with respect to the inspection of which such charge is made, and paid by it to the department, agency, or association performing such service.
(d) Revocation of authorization or registration
The Secretary may, if he deems it to be in the public interest, suspend, and after hearing, revoke any authorization and registration issued under the provisions of this section or any similar authorization and registration issued under any other provision of law. The order of the Secretary suspending or revoking any such authorization and registration shall not be subject to review.
(Aug. 15, 1921, ch. 64, title III, §317, as added June 19, 1942, ch. 421, 56 Stat. 372.)
Editorial Notes
Prior Provisions
Former provisions relating to fees for inspection of brands appearing upon livestock were contained in section 231 of this title.
Statutory Notes and Related Subsidiaries
Administrative Orders Review Act
Court of appeals exclusive jurisdiction respecting final orders of Secretary of Agriculture under this chapter, except orders issued under section 210(e) of this title and this section, see section 2342 of Title 28, Judiciary and Judicial Procedure.
§217b. Statutory trust established; dealer
(a) Establishment
(1) In general
All livestock purchased by a dealer in cash sales and all inventories of, or receivables or proceeds from, such livestock shall be held by such dealer in trust for the benefit of all unpaid cash sellers of such livestock until full payment has been received by such unpaid cash sellers.
(2) Exemption
Any dealer whose average annual purchases of livestock do not exceed $100,000 shall be exempt from the provisions of this section.
(3) Effect of dishonored instruments
For purposes of determining full payment under paragraph (1), a payment to an unpaid cash seller shall not be considered to have been made if the unpaid cash seller receives a payment instrument that is dishonored.
(b) Preservation of trust
An unpaid cash seller shall lose the benefit of a trust under subsection (a) if the unpaid cash seller has not preserved the trust by giving written notice to the dealer involved and filing such notice with the Secretary—
(1) within 30 days of the final date for making a payment under section 228b of this title in the event that a payment instrument has not been received; or
(2) within 15 business days after the date on which the seller receives notice that the payment instrument promptly presented for payment has been dishonored.
(c) Notice to lien holders
When a dealer receives notice under subsection (b) of the unpaid cash seller's intent to preserve the benefits of the trust, the dealer shall, within 15 business days, give notice to all persons who have recorded a security interest in, or lien on, the livestock held in such trust.
(d) Cash sales defined
For the purpose of this section, a cash sale means a sale in which the seller does not expressly extend credit to the buyer.
(e) Purchase of livestock subject to trust
(1) In general
A person purchasing livestock subject to a dealer trust shall receive good title to the livestock if the person receives the livestock—
(A) in exchange for payment of new value; and
(B) in good faith without notice that the transfer is a breach of trust.
(2) Dishonored payment instrument
Payment shall not be considered to have been made if a payment instrument given in exchange for the livestock is dishonored.
(3) Transfer in satisfaction of antecedent debt
A transfer of livestock subject to a dealer trust is not for value if the transfer is in satisfaction of an antecedent debt or to a secured party pursuant to a security agreement.
(f) Enforcement
Whenever the Secretary has reason to believe that a dealer subject to this section has failed to perform the duties required by this section or whenever the Secretary has reason to believe that it will be in the best interest of unpaid cash sellers, the Secretary shall do one or more of the following—
(1) appoint an independent trustee to carry out the duties required by this section, preserve trust assets, and enforce the trust;
(2) serve as independent trustee, preserve trust assets, and enforce the trust; or
(3) file suit in the United States district court for the district in which the dealer resides to enjoin the dealer's failure to perform the duties required by this section, preserve trust assets, and to enforce the trust. Attorneys employed by the Secretary may, with the approval of the Attorney General, represent the Secretary in any such suit. Nothing herein shall preclude unpaid sellers from filing suit to preserve or enforce the trust.
(Aug. 15, 1921, ch. 64, title III, §318, as added Pub. L. 116–260, div. N, title VII, §763, Dec. 27, 2020, 134 Stat. 2114.)
SUBCHAPTER IV—LIVE POULTRY DEALERS AND HANDLERS
§§218 to 218d. Repealed. Pub. L. 100–173, §10, Nov. 23, 1987, 101 Stat. 922
Section 218, act Aug. 15, 1921, ch. 64, title V, §501, as added Aug. 14, 1935, ch. 532, 49 Stat. 648, stated necessity to curb unfair, deceptive, and fraudulent practices relating to live poultry.
Section 218a, act Aug. 15, 1921, ch. 64, title V, §502, as added Aug. 14, 1935, ch. 532, 49 Stat. 648, authorized Secretary to designate cities and markets where unfair practices exist, to require licensing, and to prescribe information to be contained in application license, and authorized penalty for dealing without license.
Section 218b, act Aug. 15, 1921, ch. 64, title V, §503, as added Aug. 14, 1935, ch. 532, 49 Stat. 649, defined "live poultry dealer".
Section 218c, act Aug. 15, 1921, ch. 64, title V, §504, as added Aug. 14, 1935, ch. 532, 49 Stat. 649, related to application of other provisions of this chapter to this subchapter and posting of rates, charges, and rentals in licensee's place of business.
Section 218d, act Aug. 15, 1921, ch. 64, title V, §505, as added Aug. 14, 1935, ch. 532, 49 Stat. 649, related to suspension and revocation of licenses.
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective 90 days after Nov. 23, 1987, see section 12 of Pub. L. 100–173, set out as an Effective Date of 1987 Amendment note under section 182 of this title.
SUBCHAPTER V—GENERAL PROVISIONS
§221. Accounts and records of business; punishment for failure to keep
Every packer, any swine contractor, and any live poultry dealer, stockyard owner, market agency, and dealer shall keep such accounts, records, and memoranda as fully and correctly disclose all transactions involved in his business, including the true ownership of such business by stockholding or otherwise. Whenever the Secretary finds that the accounts, records, and memoranda of any such person do not fully and correctly disclose all transactions involved in his business, the Secretary may prescribe the manner and form in which such accounts, records, and memoranda shall be kept, and thereafter any such person who fails to keep such accounts, records, and memoranda in the manner and form prescribed or approved by the Secretary shall upon conviction be fined not more than $5,000, or imprisoned not more than three years, or both.
(Aug. 15, 1921, ch. 64, title IV, §401, 42 Stat. 168; Aug. 15, 1921, ch. 64, title V, §503, as added Aug. 14, 1935, ch. 532, 49 Stat. 649; Pub. L. 100–173, §6, Nov. 23, 1987, 101 Stat. 918; Pub. L. 107–171, title X, §10502(b)(2)(C), May 13, 2002, 116 Stat. 510.)
Editorial Notes
Amendments
2002—Pub. L. 107–171 inserted "any swine contractor, and" after "packer,".
1987—Pub. L. 100–173 substituted ", any live poultry dealer," for "or any live poultry dealer or handler,".
1935—Act Aug. 15, 1921, title V, §503, as added Aug. 14, 1935, inserted "or any live poultry dealer or handler" after "packer" wherever appearing.
Statutory Notes and Related Subsidiaries
Effective Date of 1987 Amendment
Amendment by Pub. L. 100–173 effective 90 days after Nov. 23, 1987, see section 12 of Pub. L. 100–173, set out as a note under section 182 of this title.
Liens or Security Interests Against Livestock; Interagency Task Force To Recommend Method of Providing Information to Purchasers; Report to Congress
Pub. L. 95–409, §2, Oct. 2, 1978, 92 Stat. 887, required the Secretary of Agriculture to appoint a task force to recommend methods of providing information to purchasers of livestock concerning the existence of a lien or security interest against livestock and to submit a report to Congress not later than Feb. 1, 1979.
§222. Federal Trade Commission powers adopted for enforcement of chapter
For the efficient execution of the provisions of this chapter, and in order to provide information for the use of Congress, the provisions (including penalties) of sections 46 and 48 to 50 of title 15, are made applicable to the jurisdiction, powers, and duties of the Secretary in enforcing the provisions of this chapter and to any person subject to the provisions of this chapter, whether or not a corporation. The Secretary, in person or by such agents as he may designate, may prosecute any inquiry necessary to his duties under this chapter in any part of the United States.
(Aug. 15, 1921, ch. 64, title IV, §402, 42 Stat. 168; Aug. 15, 1921, ch. 64, title V, §503, as added Aug. 14, 1935, ch. 532, 49 Stat. 649.)
Editorial Notes
Amendments
1935—Act Aug. 15, 1921, §503, as added Aug. 14, 1935, purported to insert "or any live poultry dealer or handler" after "packer" but word "packer" does not appear in this section.
Executive Documents
Transfer of Functions
Executive and administrative functions of Federal Trade Commission, with certain reservations, transferred to Chairman of such Commission by 1950 Reorg. Plan No. 8, §1, eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1264, set out in the Appendix to Title 5, Government Organization and Employees.
§223. Responsibility of principal for act or omission of agent
When construing and enforcing the provisions of this chapter, the act, omission, or failure of any agent, officer, or other person acting for or employed by any packer, any swine contractor, and any live poultry dealer, stockyard owner, market agency, or dealer, within the scope of his employment or office, shall in every case also be deemed the act, omission, or failure of such packer, any swine contractor, and any live poultry dealer, stockyard owner, market agency, or dealer, as well as that of such agent, officer, or other person.
(Aug. 15, 1921, ch. 64, title IV, §403, 42 Stat. 168; Aug. 15, 1921, ch. 64, title V, §503, as added Aug. 14, 1935, ch. 532, 49 Stat. 649; amended Pub. L. 100–173, §6, Nov. 23, 1987, 101 Stat. 918; Pub. L. 107–171, title X, §10502(b)(2)(C), May 13, 2002, 116 Stat. 510.)
Editorial Notes
Amendments
2002—Pub. L. 107–171 inserted "any swine contractor, and" after "packer," in two places.
1987—Pub. L. 100–173 substituted ", any live poultry dealer," for "or any live poultry dealer or handler," in two places.
1935—Act Aug. 15, 1921, title V, §503, as added Aug. 14, 1935, inserted "or any live poultry dealer or handler" after "packer" wherever appearing.
Statutory Notes and Related Subsidiaries
Effective Date of 1987 Amendment
Amendment by Pub. L. 100–173 effective 90 days after Nov. 23, 1987, see section 12 of Pub. L. 100–173, set out as a note under section 182 of this title.
§224. Attorney General to institute court proceedings for enforcement
The Secretary may report any violation of this chapter to the Attorney General of the United States, who shall cause appropriate proceedings to be commenced and prosecuted in the proper courts of the United States without delay.
(Aug. 15, 1921, ch. 64, title IV, §404, 42 Stat. 168; Aug. 15, 1921, ch. 64, title V, §503, as added Aug. 14, 1935, ch. 532, 49 Stat. 649.)
Editorial Notes
Amendments
1935—Act Aug. 15, 1921, title V, §503, as added Aug. 14, 1935, purported to insert "or any live poultry dealer or handler" after "packer" but word "packer" does not appear in this section.
§225. Laws unaffected
Nothing contained in this chapter, except as otherwise provided herein, shall be construed—
(a) To prevent or interfere with the enforcement of, or the procedure under, the provisions of the Act entitled "An Act to protect trade and commerce against unlawful restraints and monopolies," approved July 2, 1890, the Act entitled "An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes," approved October 15, 1914, the Interstate Commerce Act as amended, the Act entitled "An Act to promote export trade, and for other purposes," approved April 10, 1918 [15 U.S.C. 61 et seq.] or sections 73 to 76, inclusive, of the Act of August 27, 1894, entitled "An Act to reduce taxation, to provide revenue for the Government, and for other purposes," as amended by the Act entitled "An Act to amend sections seventy-three and seventy-six of the Act of August twenty-seventh, eighteen hundred and ninety-four, entitled 'An Act to reduce taxation, to provide revenue for the Government, and for other purposes,' " approved February 12, 1913, or
(b) To alter, modify, or repeal such Acts or any part or parts thereof, or
(c) To prevent or interfere with any investigation, proceeding, or prosecution begun and pending on August 15, 1921.
(Aug. 15, 1921, ch. 64, title IV, §405, 42 Stat. 168; Pub. L. 107–273, div. C, title IV, §14102(c)(2)(C), Nov. 2, 2002, 116 Stat. 1921.)
Editorial Notes
References in Text
The Act entitled "An Act to protect trade and commerce against unlawful restraints and monopolies", approved July 2, 1890, referred to in subsec. (a), means act July 2, 1890, ch. 647, 26 Stat. 209, known as the Sherman Act, which enacted sections 1 to 7 of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 1 of Title 15 and Tables.
The Act entitled "An Act to supplement existing laws against unlawful restraints and monopolies and for other purposes", approved October 15, 1914, referred to in subsec. (a), is act Oct. 15, 1914, ch. 323, 38 Stat. 730, known as the Clayton Act, which is classified generally to sections 12, 13, 14 to 19, 21, and 22 to 27 of Title 15, and sections 52 and 53 of Title 29, Labor. For further details and complete classification of the Act to the Code, see References in Text note set out under section 12 of Title 15 and Tables.
The Interstate Commerce Act, referred to in subsec. (a), is act Feb. 4, 1887, ch. 104, 24 Stat. 379, which was classified to chapters 1 (§1 et seq.), 8 (§301 et seq.), 12 (§901 et seq.), 13 (§1001 et seq.), and 19 (1231 et seq.) of Title 49, Transportation. The Act was repealed by Pub. L. 95–473, §4(b), Oct. 17, 1978, 92 Stat. 1467, the first section of which enacted subtitle IV (§10101 et seq.) of Title 49. For distribution of former sections of Title 49 into the revised Title 49, see Table at the beginning of Title 49.
The Act entitled "An Act to promote export trade and for other purposes", approved April 10, 1918, referred to in subsec. (a), means act Apr. 10, 1918, ch. 50, 40 Stat. 516, known as the Webb-Pomerene Act, which is classified generally to subchapter II (§61 et seq.) of chapter 2 of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 66 of Title 15 and Tables.
Sections 73 to 76, inclusive, of the Act of August 27, 1894, entitled "An Act to reduce taxation, to provide revenue for the Government, and for other purposes", referred to in subsec. (a), are sections 73 to 76 of act Aug. 27, 1894, ch. 349, 28 Stat. 570, and are known as the Wilson Tariff Act. Sections 73 to 76 enacted sections 8 to 11 of Title 15. For complete classification of this Act to the Code, see Short Title note set out under section 8 of Title 15 and Tables.
The Act entitled "An Act to amend sections seventy-three and seventy-six of the Act of August twenty-seventh, eighteen hundred and ninety-four, entitled, 'An Act to reduce taxation, to provide revenue for the Government, and for other purposes'," approved February 12, 1913, referred to in subsec. (a), is act Feb. 12, 1913, ch. 40, 37 Stat. 667, which is classified to sections 8 and 11 of Title 15.
Amendments
2002—Subsec. (a). Pub. L. 107–273 substituted "sections 73 to 76" for "sections 73 to 77".
Statutory Notes and Related Subsidiaries
Effective Date of 2002 Amendment
Amendment by Pub. L. 107–273 effective Nov. 2, 2002, and applicable only with respect to cases commenced on or after Nov. 2, 2002, see section 14103 of Pub. L. 107–273, set out as a note under section 3 of Title 15, Commerce and Trade.
§226. Powers of Interstate Commerce Commission unaffected
Nothing in this chapter shall affect the power or jurisdiction of the Interstate Commerce Commission, nor confer upon the Secretary concurrent power or jurisdiction over any matter within the power or jurisdiction of such commission.
(Aug. 15, 1921, ch. 64, title IV, §406(a), 42 Stat. 169.)
Editorial Notes
Codification
Section is comprised of subsec. (a) of section 406, of act Aug. 15, 1921. Subsecs. (b) to (e) of section 406, as amended, are classified to section 227 of this title.
Statutory Notes and Related Subsidiaries
Abolition of Interstate Commerce Commission and Transfer of Functions
Interstate Commerce Commission abolished and functions of Commission transferred, except as otherwise provided in Pub. L. 104–88, to Surface Transportation Board effective Jan. 1, 1996, by section 1302 of Title 49, Transportation, and section 101 of Pub. L. 104–88, set out as a note under section 1301 of Title 49. References to Interstate Commerce Commission deemed to refer to Surface Transportation Board, a member or employee of the Board, or Secretary of Transportation, as appropriate, see section 205 of Pub. L. 104–88, set out as a note under section 1301 of Title 49.
§227. Powers of Federal Trade Commission and Secretary of Agriculture
(a) Omitted
(b) Jurisdiction of Federal Trade Commission
The Federal Trade Commission shall have power and jurisdiction over any matter involving meat, meat food products, livestock products in unmanufactured form, or poultry products, which by this chapter is made subject to the power or jurisdiction of the Secretary, as follows:
(1) When the Secretary in the exercise of his duties requests of the Commission that it make investigations and reports in any case.
(2) In any investigation of, or proceeding for the prevention of, an alleged violation of any Act administered by the Commission, arising out of acts or transactions involving meat, meat food products, or livestock products in unmanufactured form, if the Commission determines that effective exercise of its power or jurisdiction with respect to retail sales of any such commodities is or will be impaired by the absence of power or jurisdiction over all acts or transactions involving such commodities in such investigation or proceeding. In order to avoid unnecessary duplication of effort by the Government and burdens upon the industry, the Commissioner shall notify the Secretary of such determination, the reasons therefor, and the acts or transactions involved, and shall not exercise power or jurisdiction with regard to acts or transactions (other than retail sales) involving such commodities if the Secretary within ten days from the date of receipt of the notice notifies the Commission that there is pending in his Department an investigation of, or proceeding for the prevention of, an alleged violation of this chapter involving the same subject matter.
(3) Over all transactions in commerce in margarine, oleomargarine, or poultry products and over retail sales of meat, meat food products and livestock products in unmanufactured form.
(c) Limitation of Federal Trade Commission jurisdiction
The Federal Trade Commission shall have no power or jurisdiction over any matter which by this chapter is made subject to the jurisdiction of the Secretary, except as provided in subsection (b) of this section.
(d) Jurisdiction of Secretary of Agriculture except for poultry products
The Secretary of Agriculture shall exercise power or jurisdiction over oleomargarine or retail sales of meat, meat food products, or livestock products in unmanufactured form only when he determines, in any investigation of, or any proceeding for the prevention of, an alleged violation of this chapter, that such action is necessary to avoid impairment of his power or jurisdiction over acts or transactions involving livestock, meat, meat food products, livestock products in unmanufactured form, or poultry other than retail sales thereof. In order to avoid unnecessary duplication of effort by the Government and burdens upon the industry, the Secretary shall notify the Federal Trade Commission of such determination, the reasons therefor, and the acts or transactions involved, and shall not exercise power or jurisdiction with respect to acts or transactions involving oleomargarine or retail sales of meat, meat food products, or livestock products in unmanufactured form if the Commission within 10 days from the date of receipt of such notice notifies the Secretary that there is pending in the Commission an investigation of, or proceeding for the prevention of, an alleged violation of any Act administered by the Commission involving the same subject matter.
(e) Jurisdiction of Secretary of Agriculture regarding poultry products
The Secretary of Agriculture shall exercise jurisdiction over poultry products only in a proceeding brought under section 197 of this title or section 228b–1 of this title when such action is necessary to avoid impairment of his jurisdiction.
(f) Information to be included in annual reports
The Secretary of Agriculture and the Federal Trade Commission shall include in their respective annual reports information with respect to the administration of subsections (b), (d), and (e) of this section.
(Aug. 15, 1921, ch. 64, title IV, §406, 42 Stat. 169; Pub. L. 85–909, §1(2), Sept. 2, 1958, 72 Stat. 1749; Pub. L. 100–173, §7, Nov. 23, 1987, 101 Stat. 919; Pub. L. 102–237, title X, §1008(2), Dec. 13, 1991, 105 Stat. 1898.)
Editorial Notes
Codification
Subsection (a) of section 406 is classified to section 226 of this title.
Amendments
1991—Subsec. (b)(2). Pub. L. 102–237 struck out comma after "unmanufactured form,".
1987—Subsec. (b)(2). Pub. L. 100–173, §7(1)(A)(ii), which directed insertion of "or" before "livestock products in unmanufactured form." was executed by making insertion before "livestock products in unmanufactured form," as the probable intent of Congress.
Pub. L. 100–173, §7(1)(A)(i), struck out "or poultry products" after "in unmanufactured form,".
Subsec. (b)(3). Pub. L. 100–173, §7(1)(B), amended par. (3) generally. Prior to amendment, par. (3) read as follows: "Over all transactions in commerce in margarine or oleomargarine and over retail sales of meat, meat food products, livestock products in unmanufactured form, and poultry products."
Subsec. (d). Pub. L. 100–173, §7(2), amended subsec. (d) generally, striking out reference to poultry products in two places and substituting "10 days" for "ten days".
Subsec. (e). Pub. L. 100–173, §7(3), (4), added subsec. (e) and redesignated former subsec. (e) as (f).
Subsec. (f). Pub. L. 100–173, §7(3), (5), redesignated former subsec. (e) as (f) and substituted "subsections (b), (d), and (e)" for "subsections (b) and (d)".
1958—Pub. L. 85–909 substituted subsecs. (b) to (e) for former provisions providing that Federal Trade Commission shall have no power or jurisdiction over matters within jurisdiction of Secretary of Agriculture except when Secretary requests Commission to make investigations and reports in any case, which were incorporated in subsecs. (b)(1) and (c).
Statutory Notes and Related Subsidiaries
Effective Date of 1987 Amendment
Amendment by Pub. L. 100–173 effective 90 days after Nov. 23, 1987, see section 12 of Pub. L. 100–173, set out as a note under section 182 of this title.
Construction of 1987 Amendments
Pub. L. 100–173, §11, Nov. 23, 1987, 101 Stat. 922, provided that:
"(a)
"(1) unfair methods of competition in or affecting commerce, and
"(2) unfair and deceptive acts or practices in or affecting commerce,
involving poultry products.
"(b)
Executive Documents
Transfer of Functions
Executive and administrative functions of Federal Trade Commission, with certain reservations, transferred to Chairman of such Commission by 1950 Reorg. Plan No. 8, §1, eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1264, set out in the Appendix to Title 5, Government Organization and Employees.
§228. Authority of Secretary
(a) Rules, regulations, and expenditures; appropriations
The Secretary may make such rules, regulations, and orders as may be necessary to carry out the provisions of this chapter and may cooperate with any department or agency of the Government, any State, Territory, District, or possession, or department, agency, or political subdivision thereof, or any person; and shall have the power to appoint, remove, and fix the compensation of such officers and employees, not in conflict with existing law, and make such expenditures for rent outside the District of Columbia, printing, telegrams, telephones, law books, books of reference, periodicals, furniture, stationery, office equipment, travel, and other supplies and expenses as shall be necessary to the administration of this chapter in the District of Columbia and elsewhere, and as may be appropriated for by Congress, and there is authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, such sums as may be necessary for such purpose.
(b) Deductions from proceeds for financing promotional, educational, and research activities
Notwithstanding any other provision of law, the authority of the Secretary under this chapter shall not apply to deductions made from sales proceeds for the purpose of financing promotion and research activities, including educational activities relating to livestock, meat, and other products covered by the chapter.
(c) Budget estimate; testimony of Secretary before Congressional committees
On or before February 15 of each calendar year beginning with calendar year 1977, or such other date as may be specified by the appropriate committee, the Secretary of Agriculture shall testify before the Senate Committee on Agriculture, Nutrition, and Forestry and the House Committee on Agriculture and provide justification in detail of the amount requested in the budget to be appropriated for the next fiscal year for the purposes authorized in this chapter.
(d) Development and promulgation of rules governing hearings
The Secretary shall, not later than sixty days after September 13, 1976, prescribe and implement rules to assure that any hearing from which any order may issue under this chapter or any hearing the expenses of which are paid from funds authorized to be appropriated under this chapter shall—
(1) if such hearing concerns a single unit of local government or the residents thereof, be held within the boundaries of such unit;
(2) if such hearing concerns a single geographic area within a State or the residents thereof, be held within the boundaries of such area; or
(3) if such hearing concerns a single State or the residents thereof, be held within such State.
(e) Definitions
For the purposes of subsection (d)—
(1) the term "unit of local government" means a county, municipality, town, township, village, or other unit of general government below the State level; and
(2) the term "geographic area within a State" means a special purpose district or other region recognized for governmental purposes within such State which is not a unit of local government.
(Aug. 15, 1921, ch. 64, title IV, §407, 42 Stat. 169; Pub. L. 85–909, §4, Sept. 2, 1958, 72 Stat. 1750; Pub. L. 88–61, July 8, 1963, 77 Stat. 79; Pub. L. 94–410, §11, Sept. 13, 1976, 90 Stat. 1252; Pub. L. 103–354, title II, §293(b), Oct. 13, 1994, 108 Stat. 3237; Pub. L. 103–437, §4(a)(2), Nov. 2, 1994, 108 Stat. 4581.)
Editorial Notes
Amendments
1994—Subsec. (b). Pub. L. 103–354, §293(b)(1), (2), redesignated subsec. (c) as (b) and struck out former subsec. (b) which read as follows: "The Secretary shall maintain within the Department of Agriculture a separate enforcement unit to administer and enforce subchapter II of this chapter."
Subsec. (c). Pub. L. 103–437, which directed the amendment of subsec. (d) by substituting "Committee on Agriculture, Nutrition, and Forestry" for "Committee on Agriculture and Forestry", was executed by making the amendment to subsec. (c) to reflect the probable intent of Congress and the intervening redesignation of subsec. (d) as (c) by Pub. L. 103–354. See below.
Pub. L. 103–354, §293(b)(2), redesignated subsec. (d) as (c). Former subsec. (c) redesignated (b).
Subsecs. (d) to (f). Pub. L. 103–354, §293(b)(2), (3), redesignated subsecs. (d) to (f) as (c) to (e), respectively, and in subsec. (e) substituted "subsection (d)" for "subsection (e)".
1976—Subsecs. (d) to (f). Pub. L. 94–410 added subsecs. (d) to (f).
1963—Subsec. (c). Pub. L. 88–61 added subsec. (c).
1958—Pub. L. 85–909 designated existing provisions as subsec. (a) and added subsec. (b).
Statutory Notes and Related Subsidiaries
Regulations
Pub. L. 110–234, title XI, §11006, May 22, 2008, 122 Stat. 1358, and Pub. L. 110–246, §4(a), title XI, §11006, June 18, 2008, 122 Stat. 1664, 2120, provided that: "As soon as practicable, but not later than 2 years after the date of the enactment of this Act [June 18, 2008], the Secretary of Agriculture shall promulgate regulations with respect to the Packers and Stockyards Act, 1921 (7 U.S.C. 181 et seq.) to establish criteria that the Secretary will consider in determining—
"(1) whether an undue or unreasonable preference or advantage has occurred in violation of such Act;
"(2) whether a live poultry dealer has provided reasonable notice to poultry growers of any suspension of the delivery of birds under a poultry growing arrangement;
"(3) when a requirement of additional capital investments over the life of a poultry growing arrangement or swine production contract constitutes a violation of such Act; and
"(4) if a live poultry dealer or swine contractor has provided a reasonable period of time for a poultry grower or a swine production contract grower to remedy a breach of contract that could lead to termination of the poultry growing arrangement or swine production contract."
[Pub. L. 110–234 and Pub. L. 110–246 enacted identical provisions. Pub. L. 110–234 was repealed by section 4(a) of Pub. L. 110–246, set out as a note under section 8701 of this title.]
§228a. Authority of Secretary to request temporary injunction or restraining order
Whenever the Secretary has reason to believe that any person subject to this chapter (a) with respect to any transactions subject to this chapter, has failed to pay or is unable to pay for livestock, meats, meat food products, or livestock products in unmanufactured form, or live poultry, or has failed to pay any poultry grower what is due on account of poultry obtained under a poultry growing arrangement, or has failed to remit to the person entitled thereto the net proceeds from the sale of any such commodity sold on a commission basis; or (b) has operated while insolvent, or otherwise in violation of this chapter in a manner which may reasonably be expected to cause irreparable damage to another person; or (c) does not have the required bond; and that it would be in the public interest to enjoin such person from operating subject to this chapter or enjoin him from operating subject to this chapter except under such conditions as would protect vendors or consignors of such commodities or other affected persons, until a complaint under this chapter is issued and dismissed by the Secretary or until an order to cease and desist made thereon by the Secretary has become final and effective within the meaning of this chapter or is set aside on appellate review of the Secretary's order, the Secretary may notify the Attorney General, who may apply to the United States district court for the district in which such person has his principal place of business or in which he resides for a temporary injunction or restraining order. When needed to effectuate the purposes of this section, the court shall, upon a proper showing, issue a temporary injunction or restraining order, without bond. Attorneys employed by the Secretary of Agriculture may, with the approval of the Attorney General, appear in the United States district court representing the Secretary in any action seeking such a temporary restraining order or injunction.
(Aug. 15, 1921, ch. 64, title IV, §408, as added Pub. L. 94–410, §5, Sept. 13, 1976, 90 Stat. 1250; amended Pub. L. 100–173, §8, Nov. 23, 1987, 101 Stat. 919.)
Editorial Notes
Codification
A prior section 228a, act Sept. 21, 1944, ch. 412, title I, §101(c), 58 Stat. 734, which related to inspections of livestock, hides, animal products, etc., was transferred to section 396 of this title.
Prior Provisions
A prior section 408 of act Aug. 15, 1921, was renumbered section 417 and is classified to section 229c of this title.
Amendments
1987—Pub. L. 100–173 inserted "or live poultry, or has failed to pay any poultry grower what is due on account of poultry obtained under a poultry growing arrangement," after "unmanufactured form,".
Statutory Notes and Related Subsidiaries
Effective Date of 1987 Amendment
Amendment by Pub. L. 100–173 effective 90 days after Nov. 23, 1987, see section 12 of Pub. L. 100–173, set out as a note under section 182 of this title.
§228b. Prompt payment for purchase of livestock
(a) Full amount of purchase price required; methods of payment
Each packer, market agency, or dealer purchasing livestock shall, before the close of the next business day following the purchase of livestock and transfer of possession thereof, deliver to the seller or his duly authorized representative the full amount of the purchase price: Provided, That each packer, market agency, or dealer purchasing livestock for slaughter shall, before the close of the next business day following purchase of livestock and transfer of possession thereof, actually deliver at the point of transfer of possession to the seller or his duly authorized representative a check or shall transfer funds for the full amount of the purchase price to the account of the seller by wire, electronic funds transfer, or any other expeditious method determined appropriate by the Secretary for the full amount of the purchase price; or, in the case of a purchase on a carcass or "grade and yield" basis, the purchaser shall make payment by check at the point of transfer of possession or shall transfer funds for the full amount of the purchase price to the account of the seller by wire, electronic funds transfer, or any other expeditious method determined appropriate by the Secretary for the full amount of the purchase price not later than the close of the first business day following determination of the purchase price: Provided further, That if the seller or his duly authorized representative is not present to receive payment at the point of transfer of possession, as herein provided, the packer, market agency or dealer shall transfer funds for the full amount of the purchase price by wire, electronic funds transfer, or any other expeditious method determined appropriate by the Secretary or place a check in the United States mail for the full amount of the purchase price, properly addressed to the seller, within the time limits specified in this subsection, such action being deemed compliance with the requirement for prompt payment.
(b) Waiver of prompt payment by written agreement; disclosure requirements
Notwithstanding the provisions of subsection (a) of this section and subject to such terms and conditions as the Secretary may prescribe, the parties to the purchase and sale of livestock may expressly agree in writing, before such purchase or sale, to effect payment in a manner other than that required in subsection (a). Any such agreement shall be disclosed in the records of any market agency or dealer selling the livestock, and in the purchaser's records and on the accounts or other documents issued by the purchaser relating to the transaction.
(c) Delay in payment or attempt to delay deemed unfair practice
Any delay or attempt to delay by a market agency, dealer, or packer purchasing livestock, the collection of funds as herein provided, or otherwise for the purpose of or resulting in extending the normal period of payment for such livestock shall be considered an "unfair practice" in violation of this chapter. Nothing in this section shall be deemed to limit the meaning of the term "unfair practice" as used in this chapter.
(Aug. 15, 1921, ch. 64, title IV, §409, as added Pub. L. 94–410, §7, Sept. 13, 1976, 90 Stat. 1250; amended Pub. L. 114–237, §3, Oct. 7, 2016, 130 Stat. 970.)
Editorial Notes
Amendments
2016—Subsec. (a). Pub. L. 114–237, §3, substituted "shall transfer funds for the full amount of the purchase price to the account of the seller by wire, electronic funds transfer, or any other expeditious method determined appropriate by the Secretary" for "shall wire transfer funds to the seller's account" in two places in first proviso and "or dealer shall transfer funds for the full amount of the purchase price by wire, electronic funds transfer, or any other expeditious method determined appropriate by the Secretary" for "or dealer shall wire transfer funds" in second proviso.
§228b–1. Final date for making payment to cash seller or poultry grower
(a) Delivery of full amount due
Each live poultry dealer obtaining live poultry by purchase in a cash sale shall, before the close of the next business day following the purchase of poultry, and each live poultry dealer obtaining live poultry under a poultry growing arrangement shall, before the close of the fifteenth day following the week in which the poultry is slaughtered, deliver, to the cash seller or poultry grower from whom such live poultry dealer obtains the poultry, the full amount due to such cash seller or poultry grower on account of such poultry.
(b) Delay or attempt to delay collection of funds as "unfair practice"
Any delay or attempt to delay, by a live poultry dealer which is a party to any such transaction, the collection of funds as herein provided, or otherwise for the purpose of or resulting in extending the normal period of payment for poultry obtained by poultry growing arrangement or purchased in a cash sale, shall be considered an "unfair practice" in violation of this chapter. Nothing in this section shall be deemed to limit the meaning of the term "unfair practice" as used in this chapter.
(c) Definition of cash sale
For the purpose of this section, a cash sale means a sale in which the seller does not expressly extend credit to the buyer.
(Aug. 15, 1921, ch. 64, title IV, §410, as added Pub. L. 100–173, §9(2), Nov. 23, 1987, 101 Stat. 920.)
Editorial Notes
Prior Provisions
A prior section 410 of act Aug. 15, 1921, was renumbered section 414 and is classified to section 228c of this title.
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 90 days after Nov. 23, 1987, see section 12 of Pub. L. 100–173, set out as an Effective Date of 1987 Amendment note under section 182 of this title.
§228b–2. Violations by live poultry dealers
(a) Written complaint by Secretary; hearing; intervention; amended complaint
Whenever the Secretary has reason to believe that any live poultry dealer has violated or is violating any provision of section 197 of this title or section 228b–1 of this title, he shall cause a complaint in writing to be served upon the live poultry dealer, stating his charges in that respect, and requiring the live poultry dealer to attend and testify at a hearing at a time and place designated therein, at least 30 days after the service of such complaint; and at such time and place there shall be afforded the live poultry dealer a reasonable opportunity to be informed as to the evidence introduced against him (including the right of cross-examination), and to be heard in person or by counsel and through witnesses, under such regulations as the Secretary may prescribe. Any person for good cause shown may, on application, be allowed by the Secretary to intervene in such proceeding, and appear in person or by counsel. At any time prior to the close of the hearing, the Secretary may amend the complaint; but in case of any amendment adding new charges, the hearing shall, on the request of the live poultry dealer, be adjourned for a period not exceeding 15 days.
(b) Report on findings of fact by Secretary; cease and desist order; assessment of civil penalty; action by Attorney General upon live poultry dealer's failure to pay penalty
If, after such hearing, the Secretary finds that the live poultry dealer has violated, or is violating, any provisions of section 197 of this title or section 228b–1 of this title covered by the charges, he shall make a report in writing in which he shall state his findings as to the facts, and shall issue and cause to be served on the live poultry dealer an order requiring such live poultry dealer to cease and desist from continuing such violation. The testimony taken at the hearing shall be reduced to writing and filed in the records of the Department of Agriculture. The Secretary may also assess a civil penalty of not more than $20,000 for each such violation. In determining the amount of the civil penalty to be assessed under this section, the Secretary shall consider the gravity of the offense, the size of the business involved, and the effect of the penalty on the person's ability to continue in business: Provided, however, That in no event can the penalty assessed by the Secretary take priority over or impede the ability of the live poultry dealer to pay any unpaid cash seller or poultry grower. If, after the lapse of the period allowed for appeal or after the affirmance of such penalty, the person against whom the civil penalty is assessed fails to pay such penalty, the Secretary may refer the matter to the Attorney General, who may recover such penalty by an action in the appropriate District Court of the United States.
(c) Amendment or setting aside of report or order
Until the record in such hearing has been filed in a court of appeals of the United States, as provided in section 228b–3 of this title, the Secretary, at any time, upon such notice and in such manner as he deems proper, but only after reasonable opportunity to the live poultry dealer to be heard, may amend or set aside the report or order, in whole or in part.
(d) Service of complaints, orders, and other processes
Complaints, orders, and other processes of the Secretary under this section may be served in the same manner as provided in section 45 of title 15.
(Aug. 15, 1921, ch. 64, title IV, §411, as added Pub. L. 100–173, §9(2), Nov. 23, 1987, 101 Stat. 920.)
Editorial Notes
Prior Provisions
A prior section 411 of act Aug. 15, 1921, was renumbered section 417 and is classified to section 229c of this title.
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 90 days after Nov. 23, 1987, see section 12 of Pub. L. 100–173, set out as an Effective Date of 1987 Amendment note under section 182 of this title.
§228b–3. Judicial review of order regarding live poultry dealer
(a) Finality of order unless appeal to court of appeals; time limit; bond
An order made under section 228b–2 of this title shall be final and conclusive unless within 30 days after service the live poultry dealer appeals to the court of appeals for the circuit in which he has his principal place of business, by filing with the clerk of such court a written petition praying that the Secretary's order be set aside or modified in the manner stated in the petition, together with a bond in such sum as the court may determine, conditioned that such live poultry dealer will pay the costs of the proceedings if the court so directs.
(b) Notification of appeal to Secretary; filing of record with court
The clerk of the court shall immediately cause a copy of the petition to be delivered to the Secretary, and the Secretary shall thereupon file in the court the record in such proceedings, as provided in section 2112 of title 28. If before such record is filed the Secretary amends or sets aside his report or order, in whole or in part, the petitioner may amend the petition within such time as the court may determine, on notice to the Secretary.
(c) Issuance of temporary injunction
At any time after such petition is filed, the court, on application of the Secretary, may issue a temporary injunction, restraining, to the extent it deems proper, the live poultry dealer and his officers, directors, agents, and employees, from violating any of the provisions of the order pending the final determination of the appeal.
(d) Evidence in record as evidence in case; expedited proceedings
The evidence so taken or admitted, and filed as aforesaid as a part of the record, shall be considered by the court as the evidence in the case. The proceedings in such cases in the court of appeals shall be made a preferred cause and shall be expedited in every way.
(e) Action by court
The court may affirm, modify, or set aside the order of the Secretary.
(f) Taking of additional evidence; modified or additional findings by Secretary
If the court determines that the just and proper disposition of the case requires the taking of additional evidence, the court shall order the hearing to be reopened for the taking of such evidence, in such manner and upon such terms and conditions as the court may deem proper. The Secretary may modify his findings as to the facts, or make new findings, by reason of the additional evidence so taken, and he shall file such modified or new findings and his recommendations, if any, for the modification or setting aside of his order, with the return of such additional evidence.
(g) Affirmance or modification of order as injunction
If the court of appeals affirms or modifies the order of the Secretary, its decree shall operate as an injunction to restrain the live poultry dealer, and his officers, directors, agents, and employees from violating the provisions of such order or such order as modified.
(h) Exclusive jurisdiction of court of appeals; finality of decree; appeal to Supreme Court; stay of decree
The court of appeals shall have jurisdiction which upon the filing of the record with it shall be exclusive, to review, and to affirm, set aside, or modify, such orders of the Secretary, and the decree of such court shall be final except that it shall be subject to review by the Supreme Court of the United States upon certiorari, as provided in section 1254 of title 28, if such writ is duly applied for within 60 days after entry of the decree. The issue of such writ shall not operate as a stay of the decree of the court of appeals, insofar as such decree operates as an injunction, unless so ordered by the Supreme Court.
(Aug. 15, 1921, ch. 64, title IV, §412, as added Pub. L. 100–173, §9(2), Nov. 23, 1987, 101 Stat. 921.)
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 90 days after Nov. 23, 1987, see section 12 of Pub. L. 100–173, set out as an Effective Date of 1987 Amendment note under section 182 of this title.
§228b–4. Violation of final order by live poultry dealer; penalty
Any live poultry dealer, or any officer, director, agent, or employee of a live poultry dealer, who fails to obey any order of the Secretary issued under the provisions of section 228b–2 of this title, or such order as modified—
(1) after the expiration of the time allowed for filing a petition in the court of appeals to set aside or modify such order, if no such petition has been filed within such time;
(2) after the expiration of the time allowed for applying for a writ of certiorari, if such order, or such order as modified, has been sustained by the court of appeals and no such writ has been applied for within such time; or
(3) after such order, or such order as modified, has been sustained by the courts as provided in section 228b–3 of this title;
shall on conviction be fined not less than $1,000 nor more than $20,000. Each day during which such failure continues shall be deemed a separate offense.
(Aug. 15, 1921, ch. 64, title IV, §413, as added Pub. L. 100–173, §9(2), Nov. 23, 1987, 101 Stat. 922.)
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 90 days after Nov. 23, 1987, see section 12 of Pub. L. 100–173, set out as an Effective Date of 1987 Amendment note under section 182 of this title.
§228c. Federal preemption of State and local requirements
No requirement of any State or territory of the United States, or any subdivision thereof, or the District of Columbia, with respect to bonding of packers or prompt payment by packers for livestock purchases may be enforced upon any packer operating in compliance with the bonding provisions under section 204 of this title, and prompt payment provisions of section 228b of this title, respectively: Provided, That this section shall not preclude a State from enforcing a requirement, with respect to payment for livestock purchased by a packer at a stockyard subject to this chapter, which is not in conflict with this chapter or regulations thereunder: Provided further, That this section shall not preclude a State from enforcing State law or regulations with respect to any packer not subject to this chapter or section 204 of this title.
(Aug. 15, 1921, ch. 64, title IV, §414, formerly §410, as added Pub. L. 94–410, §9, Sept. 13, 1976, 90 Stat. 1252; renumbered §414, Pub. L. 100–173, §9(1), Nov. 23, 1987, 101 Stat. 919.)
§228d. Annual assessment of cattle and hog industries
Not later than March 1 of each year, the Secretary shall submit to Congress and make publicly available a report that—
(1) assesses the general economic state of the cattle and hog industries;
(2) describes changing business practices in those industries; and
(3) identifies market operations or activities in those industries that appear to raise concerns under this chapter.
(Aug. 15, 1921, ch. 64, title IV, §415, as added Pub. L. 106–472, title III, §312(e)(2), Nov. 9, 2000, 114 Stat. 2077.)
Editorial Notes
Prior Provisions
A prior section 415 of act Aug. 15, 1921, was renumbered section 417 and is classified to section 229c of this title.
§229. Repealed. Pub. L. 110–234, title XI, 11004(b), May 22, 2008, 122 Stat. 1356, and Pub. L. 110–246, §4(a), title XI, §11004(b), June 18, 2008, 122 Stat. 1664, 2118
Section, act Aug. 15, 1921, ch. 64, title IV, §416, as added Pub. L. 110–234, title XI, §11004(a)(2), May 22, 2008, 122 Stat. 1355, and Pub. L. 110–246, §4(a), title XI, §11004(a)(2), June 18, 2008, 122 Stat. 1664, 2117, related to annual reports about investigations and enforcement actions.
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 repealed this section. Pub. L. 110–234 was repealed by section 4(a) of Pub. L. 110–246.
Prior Provisions
A prior section 416 of act Aug. 15, 1921, was renumbered section 417 and is classified to section 229c of this title.
Another prior section 416 of act Aug. 15, 1921, was classified to section 229a of this title, prior to repeal by Pub. L. 106–78.
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Pub. L. 110–234, title XI, 11004(b), May 22, 2008, 122 Stat. 1356, and Pub. L. 110–246, §4(a), title XI, §11004(b), June 18, 2008, 122 Stat. 1664, 2118, provided that the repeal of this section is effective Sept. 30, 2012 [extended to Sept. 30, 2013, see section 701(a) of Pub. L. 112–240, set out in a 1-Year Extension of Agricultural Programs note under section 8701 of this title].
[Pub. L. 110–234 and Pub. L. 110–246 enacted identical provisions. Pub. L. 110–234 was repealed by section 4(a) of Pub. L. 110–246, set out as a note under section 8701 of this title.]
§229a. Repealed. Pub. L. 106–78, title IX, §913(a), Oct. 22, 1999, 113 Stat. 1205
Section, act Aug. 15, 1921, ch. 64, title IV, §416, as added Pub. L. 105–277, div. A, §101(a) [title XI, §1127(a)], Oct. 21, 1998, 112 Stat. 2681, 2681-46, related to mandatory domestic reporting pilot investigation.
Termination of Repeal
For termination of repeal by section 942 of Pub. L. 106–78, see Livestock Mandatory Reporting note set out under section 1635 of this title.
Statutory Notes and Related Subsidiaries
Termination Date of Repeal
Repeal by Pub. L. 106–78 to terminate Dec. 20, 2024, see section 942 of Pub. L. 106–78, set out in a Livestock Mandatory Reporting note under section 1635 of this title.
§229b. Right to discuss terms of contract
(a) Definitions
In this section:
(1) Producer
The term "producer" means any person engaged in the raising and caring for livestock or poultry for slaughter.
(2) Processor
The term "processor" means any person engaged in the business of obtaining livestock or poultry for the purpose of slaughtering the livestock or poultry.
(b) No prohibition of discussion
Notwithstanding a provision in any contract between a producer and a processor for the production of livestock or poultry, or in any marketing agreement between a producer and a processor for the sale of livestock or poultry for a term of 1 year or more, that provides that information contained in the contract is confidential, a party to the contract shall not be prohibited from discussing any terms or details of the contract with—
(1) a Federal or State agency;
(2) a legal adviser to the party;
(3) a lender to the party;
(4) an accountant hired by the party;
(5) an executive or manager of the party;
(6) a landlord of the party; or
(7) a member of the immediate family of the party.
(c) Effect on State laws
Subsection (b) does not—
(1) preempt any State law that addresses confidentiality provisions in contracts for the sale or production of livestock or poultry, except any provision of State law that makes lawful a contract provision that prohibits a party from, or limits a party in, engaging in discussion that subsection (b) requires to be permitted; or
(2) deprive any State court of jurisdiction under any such State law.
(d) Applicability
This section applies to each contract described in subsection (b) that is entered into, amended, renewed, or extended after May 13, 2002.
(Pub. L. 107–171, title X, §10503, May 13, 2002, 116 Stat. 510.)
Editorial Notes
Codification
Section was enacted as part of the Farm Security and Rural Investment Act of 2002, and not as part of the Packers and Stockyards Act, 1921, which comprises this chapter.
§229c. Separability
If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the chapter and of the application of such provision to other persons and circumstances shall not be affected thereby.
(Aug. 15, 1921, ch. 64, title IV, §417, formerly §408, 42 Stat. 169; renumbered §411, Pub. L. 94–410, §5, Sept. 13, 1976, 90 Stat. 1250; renumbered §415, Pub. L. 100–173, §9(1), Nov. 23, 1987, 101 Stat. 919; renumbered §416, Pub. L. 106–472, title III, §312(e)(1), Nov. 9, 2000, 114 Stat. 2077; renumbered §417, Pub. L. 110–234, title XI, §11004(a)(1), May 22, 2008, 122 Stat. 1355, and Pub. L. 110–246, §4(a), title XI, §11004(a)(1), June 18, 2008, 122 Stat. 1664, 2117.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 both renumbered this section as section 417 of act Aug. 15, 1921. Pub. L. 110–234 was repealed by section 4(a) of Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234.
Section was formerly classified to section 229 of this title.
SUBCHAPTER VI—CHARGE FOR INSPECTION
§231. Omitted
Editorial Notes
Codification
Section, act July 22, 1942, ch. 516, 56 Stat. 689, was from the Department of Agriculture Appropriation Act, 1943, and provided for fees for inspection of brands appearing upon livestock. See section 217a of this title. Similar provisions were contained in the following prior appropriation acts:
July 1, 1941, ch. 267, 55 Stat. 432.
June 25, 1940, ch. 421, 54 Stat. 557.
June 30, 1939, ch. 253, title I, 53 Stat. 970.
June 16, 1938, ch. 464, title I, 52 Stat. 721.
June 29, 1937, ch. 404, 50 Stat. 406.
June 4, 1936, ch. 489, 49 Stat. 1432.
May 17, 1935, ch. 131, title I, 49 Stat. 257.
Mar. 26, 1934, ch. 89, 48 Stat. 477.
Mar. 3, 1933, ch. 203, 47 Stat. 1441.
July 7, 1932, ch. 443, 47 Stat. 620.
Feb. 23, 1931, ch. 278, 46 Stat. 1252.
May 27, 1930, ch. 341, 46 Stat. 402.
Feb. 16, 1929, ch. 227, 45 Stat. 1198.
CHAPTER 10—WAREHOUSES
Editorial Notes
Codification
The United States Warehouse Act, comprising this chapter, was originally enacted by act Aug. 11, 1916, ch. 313, pt. C, 39 Stat. 486, and amended by July 24, 1919, ch. 26, 41 Stat. 266; Feb. 23, 1923, ch. 106, 42 Stat. 1282; Mar. 2, 1931, ch. 366, 46 Stat. 1463; Pub. L. 97–35, title I, §158(a)(1), (2), Aug. 13, 1981, 95 Stat. 375, 376; Pub. L. 99–260, §14, Mar. 20, 1986, 100 Stat. 54; Pub. L. 101–624, title V, §508(a), (b), Nov. 28, 1990, 104 Stat. 3441, 3443; Pub. L. 102–237, title X, §1009, Dec. 13, 1991, 105 Stat. 1898; Pub. L. 102–553, §1, Oct. 28, 1992, 106 Stat. 4140. Such Act is shown herein, however, as having been added by Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2061, without reference to such intervening amendments because of the extensive revision of the title's provisions by Pub. L. 106–472.
§241. Definitions
In this chapter:
(1) Agricultural product
The term "agricultural product" means an agricultural commodity, as determined by the Secretary, including a processed product of an agricultural commodity.
(2) Approval
The term "approval" means the consent provided by the Secretary for a person to engage in an activity authorized by this chapter.
(3) Department
The term "Department" means the Department of Agriculture.
(4) Electronic document
The term "electronic document" means a document that is generated, sent, received, or stored by electronic, optical, or similar means, including electronic data interchange, electronic mail, telegram, telex, or telecopy.
(5) Electronic receipt
The term "electronic receipt" means a receipt that is authorized by the Secretary to be issued or transmitted under this chapter in the form of an electronic document.
(6) Holder
The term "holder" means a person that has possession in fact or by operation of law of a receipt or any electronic document.
(7) Person
The term "person" means—
(A) a person (as defined in section 1 of title 1);
(B) a State; and
(C) a political subdivision of a State.
(8) Receipt
The term "receipt" means a warehouse receipt issued in accordance with this chapter, including an electronic receipt.
(9) Secretary
The term "Secretary" means the Secretary of Agriculture.
(10) Warehouse
The term "warehouse" means a structure or other approved storage facility, as determined by the Secretary, in which any agricultural product may be stored or handled for the purposes of interstate or foreign commerce.
(11) Warehouse operator
The term "warehouse operator" means a person that is lawfully engaged in the business of storing or handling agricultural products.
(Aug. 11, 1916, ch. 313, pt. C, §2, as added Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2061.)
Editorial Notes
Codification
This chapter constitutes part C of "An act making appropriations for the Department of Agriculture for the fiscal year ending June 13, 1917, and for other purposes," approved Aug. 11, 1916. Part A of act of Aug. 11, 1916, ch. 313, containing the "United States Cotton Futures Act" formerly classified to chapter 13 of Title 26, Internal Revenue Code, was repealed by section 4 of act Feb. 10, 1939, ch. 2, 53 Stat. 1. Part B of that act contained the "United States Grain Standards Act" and constitutes section 71 et seq. of this title.
Prior Provisions
A prior section 241, act Aug. 11, 1916, ch. 313, pt. C, §1, 39 Stat. 486, set forth short title, prior to the general amendment of this chapter by Pub. L. 106–472.
A prior section 2 of act Aug. 11, 1916, ch. 313, pt. C, was classified to section 242 of this title, prior to the general amendment of this chapter by Pub. L. 106–472.
Statutory Notes and Related Subsidiaries
Short Title
Act Aug. 11, 1916, ch. 313, pt. C, §1, as added by Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2061, provided that: "This Act [enacting this chapter] may be cited as the 'United States Warehouse Act'."
Effective Date; Regulations
Pub. L. 106–472, title II, §202, Nov. 9, 2000, 114 Stat. 2068, provided that:
"(a)
"(b)
"(c)
"(1) the date on which final regulations are promulgated under subsection (b); or
"(2) August 1, 2001."
§242. Powers of Secretary
(a) In general
The Secretary shall have exclusive power, jurisdiction, and authority, to the extent that this chapter applies, with respect to—
(1) each warehouse operator licensed under this chapter;
(2) each person that has obtained an approval to engage in an activity under this chapter; and
(3) each person claiming an interest in an agricultural product by means of a document or receipt subject to this chapter.
(b) Covered agricultural products
The Secretary shall specify, after an opportunity for notice and comment, those agricultural products for which a warehouse license may be issued under this chapter.
(c) Investigations
The Secretary may investigate the storing, warehousing, classifying according to grade and otherwise, weighing, and certifying of agricultural products.
(d) Inspections
The Secretary may inspect or cause to be inspected any person or warehouse licensed under this chapter and any warehouse for which a license is applied for under this chapter.
(e) Suitability for storage
The Secretary may determine whether a licensed warehouse, or a warehouse for which a license is applied for under this chapter, is suitable for the proper storage of the agricultural product or products stored or proposed for storage in the warehouse.
(f) Classification
The Secretary may classify a licensed warehouse, or a warehouse for which a license is applied for under this chapter, in accordance with the ownership, location, surroundings, capacity, conditions, and other qualities of the warehouse and as to the kinds of licenses issued or that may be issued for the warehouse under this chapter.
(g) Warehouse operator's duties
Subject to the other provisions of this chapter, the Secretary may prescribe the duties of a warehouse operator operating a warehouse licensed under this chapter with respect to the warehouse operator's care of and responsibility for agricultural products stored or handled by the warehouse operator.
(h) Systems for electronic conveyance
(1) Regulations governing electronic systems
Except as provided in paragraph (2), the Secretary may promulgate regulations governing one or more electronic systems under which electronic receipts may be issued and transferred and other electronic documents relating to the shipment, payment, and financing of the sale of agricultural products may be issued or transferred.
(2) Limitations
The Secretary shall not have the authority under this chapter to establish—
(A) one or more central filing systems for the filing of financing statements or the filing of the notice of financing statements; or
(B) rules to determine security interests of persons affected by this chapter.
(i) Examination and audits
In addition to the authority provided under subsection (l), on request of the person, State agency, or commodity exchange, the Secretary may conduct an examination, audit, or similar activity with respect to—
(1) any person that is engaged in the business of storing an agricultural product that is subject to this chapter;
(2) any State agency that regulates the storage of an agricultural product by such a person; or
(3) any commodity exchange with regulatory authority over the storage of agricultural products that are subject to this chapter.
(j) Licenses for operation of warehouses
The Secretary may issue to any warehouse operator a license for the operation of a warehouse in accordance with this chapter if—
(1) the Secretary determines that the warehouse is suitable for the proper storage of the agricultural product or products stored or proposed for storage in the warehouse; and
(2) the warehouse operator agrees, as a condition of the license, to comply with this chapter (including regulations promulgated under this chapter).
(k) Licensing of other persons
(1) In general
On presentation of satisfactory proof of competency to carry out the activities described in this paragraph, the Secretary may issue to any person a Federal license—
(A) to inspect any agricultural product stored or handled in a warehouse subject to this chapter;
(B) to sample such an agricultural product;
(C) to classify such an agricultural product according to condition, grade, or other class and certify the condition, grade, or other class of the agricultural product; or
(D) to weigh such an agricultural product and certify the weight of the agricultural product.
(2) Condition
As a condition of a license issued under paragraph (1), the licensee shall agree to comply with this chapter (including regulations promulgated under this chapter).
(l) Examination of books, records, papers, and accounts
The Secretary may examine and audit, using designated officers, employees, or agents of the Department, all books, records, papers, and accounts relating to activities subject to this chapter of—
(1) a warehouse operator operating a warehouse licensed under this chapter;
(2) a person operating a system for the electronic recording and transfer of receipts and other documents authorized by the Secretary; or
(3) any other person issuing receipts or electronic documents authorized by the Secretary under this chapter.
(m) Cooperation with States
The Secretary may—
(1) cooperate with officers and employees of a State who administer or enforce State laws relating to warehouses, warehouse operators, weighers, graders, inspectors, samplers, or classifiers; and
(2) enter into cooperative agreements with States to perform activities authorized under this chapter.
(Aug. 11, 1916, ch. 313, pt. C, §3, as added Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2062.)
Editorial Notes
Prior Provisions
A prior section 242, acts Aug. 11, 1916, ch. 313, pt. C, §2, 39 Stat. 486; Feb. 23, 1923, ch. 106, 42 Stat. 1282, defined terms, prior to the general amendment of this chapter by Pub. L. 106–472. See section 241 of this title.
A prior section 3 of act Aug. 11, 1916, ch. 313, pt. C, was classified to section 243 of this title, prior to the general amendment of this chapter by Pub. L. 106–472.
§243. Imposition and collection of fees
(a) In general
The Secretary shall assess persons covered by this chapter fees to cover the costs of administering this chapter.
(b) Rates
The fees under this section shall be set at a rate determined by the Secretary.
(c) Treatment of fees
All fees collected under this section shall be credited to the account that incurs the costs of administering this chapter and shall be available to the Secretary without further appropriation and without fiscal year limitation.
(d) Interest
Funds collected under this section may be deposited in an interest-bearing account with a financial institution, and any interest earned on the account shall be credited under subsection (c).
(e) Efficiencies and cost effectiveness
(1) In general
The Secretary shall seek to minimize the fees established under this section by improving efficiencies and reducing costs, including the efficient use of personnel to the extent practicable and consistent with the effective implementation of this chapter.
(2) Report
The Secretary shall publish an annual report on the actions taken by the Secretary to comply with paragraph (1).
(Aug. 11, 1916, ch. 313, pt. C, §4, as added Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2064.)
Editorial Notes
Prior Provisions
A prior section 243, act Aug. 11, 1916, ch. 313, pt. C, §3, 39 Stat. 486, authorized investigation of warehousing, weighing, classifying, and certification of agricultural products, inspection of warehouses, and prescription of duties of warehousemen by Secretary of Agriculture, prior to the general amendment of this chapter by Pub. L. 106–472. See section 242 of this title.
A prior section 4 of act Aug. 11, 1916, ch. 313, pt. C, was classified to section 244 of this title, prior to the general amendment of this chapter by Pub. L. 106–472.
§244. Quality and value standards
If standards for the evaluation or determination of the quality or value of an agricultural product are not established under another Federal law, the Secretary may establish standards for the evaluation or determination of the quality or value of the agricultural product under this chapter.
(Aug. 11, 1916, ch. 313, pt. C, §5, as added Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2064.)
Editorial Notes
Prior Provisions
A prior section 244, acts Aug. 11, 1916, ch. 313, pt. C, §4, 39 Stat. 486; Mar. 2, 1931, ch. 366, §1, 46 Stat. 1463, authorized licensing of warehousemen, prior to the general amendment of this chapter by Pub. L. 106–472. See section 242 of this title.
A prior section 5 of act Aug. 11, 1916, ch. 313, pt. C, was classified to section 245 of this title, prior to the general amendment of this chapter by Pub. L. 106–472.
§245. Bonding and other financial assurance requirements
(a) In general
As a condition of receiving a license or approval under this chapter (including regulations promulgated under this chapter), the person applying for the license or approval shall execute and file with the Secretary a bond, or provide such other financial assurance as the Secretary determines appropriate, to secure the person's performance of the activities so licensed or approved.
(b) Service of process
To qualify as a suitable bond or other financial assurance under subsection (a), the surety, sureties, or financial institution shall be subject to service of process in suits on the bond or other financial assurance in the State, district, or territory in which the warehouse is located.
(c) Additional assurances
If the Secretary determines that a previously approved bond or other financial assurance is insufficient, the Secretary may suspend or revoke the license or approval covered by the bond or other financial assurance if the person that filed the bond or other financial assurance does not provide such additional bond or other financial assurance as the Secretary determines appropriate.
(d) Third party actions
Any person injured by the breach of any obligation arising under this chapter for which a bond or other financial assurance has been obtained as required by this section may sue with respect to the bond or other financial assurance in a district court of the United States to recover the damages that the person sustained as a result of the breach.
(Aug. 11, 1916, ch. 313, pt. C, §6, as added Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2064.)
Editorial Notes
Prior Provisions
A prior section 245, acts Aug. 11, 1916, ch. 313, pt. C, §5, 39 Stat. 486; Feb. 23, 1923, ch. 106, 42 Stat. 1282, related to term and renewal of license, prior to the general amendment of this chapter by Pub. L. 106–472.
A prior section 6 of act Aug. 11, 1916, ch. 313, pt. C, was classified to section 247 of this title, prior to the general amendment of this chapter by Pub. L. 106–472.
§246. Maintenance of records
To facilitate the administration of this chapter, the following persons shall maintain such records and make such reports, as the Secretary may by regulation require:
(1) A warehouse operator that is licensed under this chapter.
(2) A person operating a system for the electronic recording and transfer of receipts and other documents that are authorized under this chapter.
(3) Any other person engaged in the issuance of electronic receipts or the transfer of documents under this chapter.
(Aug. 11, 1916, ch. 313, pt. C, §7, as added Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2065.)
Editorial Notes
Prior Provisions
A prior section 246, acts Aug. 11, 1916, ch. 313, pt. C, §25, 39 Stat. 490; Mar. 2, 1931, ch. 366, §8, 46 Stat. 1465, related to suspension and revocation of license, prior to the general amendment of this chapter by Pub. L. 106–472. See section 252 of this title.
A prior section 7 of act Aug. 11, 1916, ch. 313, pt. C, was classified to section 249 of this title, prior to the general amendment of this chapter by Pub. L. 106–472.
§247. Fair treatment in storage of agricultural products
(a) In general
Subject to the capacity of a warehouse, a warehouse operator shall deal, in a fair and reasonable manner, with persons storing, or seeking to store, an agricultural product in the warehouse if the agricultural product—
(1) is of the kind, type, and quality customarily stored or handled in the area in which the warehouse is located;
(2) is tendered to the warehouse operator in a suitable condition for warehousing; and
(3) is tendered in a manner that is consistent with the ordinary and usual course of business.
(b) Allocation
Nothing in this section prohibits a warehouse operator from entering into an agreement with a depositor of an agricultural product to allocate available storage space.
(Aug. 11, 1916, ch. 313, pt. C, §8, as added Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2065.)
Editorial Notes
Prior Provisions
A prior section 247, acts Aug. 11, 1916, ch. 313, pt. C, §6, 39 Stat. 486; July 24, 1919, ch. 26, 41 Stat. 266; Feb. 23, 1923, ch. 106, 42 Stat. 1283; Mar. 2, 1931, ch. 366, §2, 46 Stat. 1463, required bond as condition to granting of license and additional bonds if first bond determined to become insufficient, prior to the general amendment of this chapter by Pub. L. 106–472. See section 245 of this title.
A prior section 8 of act Aug. 11, 1916, ch. 313, pt. C, was classified to section 250 of this title, prior to the general amendment of this chapter by Pub. L. 106–472.
§248. Commingling of agricultural products
(a) In general
A warehouse operator may commingle agricultural products in a manner approved by the Secretary.
(b) Liability
A warehouse operator shall be severally liable to each depositor or holder for the care and redelivery of the share of the depositor and holder of the commingled agricultural product to the same extent and under the same circumstances as if the agricultural products had been stored separately.
(Aug. 11, 1916, ch. 313, pt. C, §9, as added Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2065.)
Editorial Notes
Prior Provisions
A prior section 248, acts Aug. 11, 1916, ch. 313, pt. C, §9, 39 Stat. 487; Mar. 2, 1931, ch. 366, §4, 46 Stat. 1464, related to issuance of licenses to persons other than warehousemen, prior to the general amendment of this chapter by Pub. L. 106–472. See section 242 of this title.
§249. Transfer of stored agricultural products
(a) In general
In accordance with regulations promulgated under this chapter, a warehouse operator may transfer a stored agricultural product from one warehouse to another warehouse for continued storage.
(b) Continued duty
The warehouse operator from which agricultural products have been transferred under subsection (a) shall deliver to the rightful owner of such products, on request at the original warehouse, such products in the quantity and of the kind, quality, and grade called for by the receipt or other evidence of storage of the owner.
(Aug. 11, 1916, ch. 313, pt. C, §10, as added Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2065.)
Editorial Notes
Prior Provisions
A prior section 249, act Aug. 11, 1916, ch. 313, pt. C, §7, 39 Stat. 487, entitled injured persons to bring actions on bonds, prior to the general amendment of this chapter by Pub. L. 106–472. See section 245 of this title.
A prior section 10 of act Aug. 11, 1916, ch. 313, pt. C, was classified to section 251 of this title, prior to the general amendment of this chapter by Pub. L. 106–472.
§250. Warehouse receipts
(a) In general
At the request of the depositor of an agricultural product stored or handled in a warehouse licensed under this chapter, the warehouse operator shall issue a receipt to the depositor as prescribed by the Secretary.
(b) Actual storage required
A receipt may not be issued under this section for an agricultural product unless the agricultural product is actually stored in the warehouse at the time of the issuance of the receipt.
(c) Contents
Each receipt issued for an agricultural product stored or handled in a warehouse licensed under this chapter shall contain such information, for each agricultural product covered by the receipt, as the Secretary may require by regulation.
(d) Prohibition on additional receipts or other documents
(1) Receipts
While a receipt issued under this chapter is outstanding and uncanceled by the warehouse operator, an additional receipt may not be issued for the same agricultural product (or any portion of the same agricultural product) represented by the outstanding receipt, except as authorized by the Secretary.
(2) Other documents
If a document is transferred under this section, no duplicate document in any form may be transferred by any person with respect to the same agricultural product represented by the document, except as authorized by the Secretary.
(e) Electronic receipts and electronic documents
Except as provided in section 242(h)(2) of this title, notwithstanding any other provision of Federal or State law:
(1) In general
The Secretary may promulgate regulations that authorize the issuance, recording, and transfer of electronic receipts, and the transfer of other electronic documents, in accordance with this subsection.
(2) Electronic receipt or electronic document systems
Electronic receipts may be issued, recorded, and transferred, and electronic documents may be transferred, under this subsection with respect to an agricultural product under, a system or systems maintained in one or more locations and approved by the Secretary in accordance with regulations issued under this chapter.
(3) Treatment of holder
Any person designated as the holder of an electronic receipt or other electronic document issued or transferred under this chapter shall, for the purpose of perfecting the security interest of the person under Federal or State law and for all other purposes, be considered to be in possession of the receipt or other electronic document.
(4) Nondiscrimination
An electronic receipt issued, or other electronic document transferred, in accordance with this chapter shall not be denied legal effect, validity, or enforceability on the ground that the information is generated, sent, received, or stored by electronic or similar means.
(5) Security interests
If more than one security interest exists in the agricultural product that is the subject of an electronic receipt or other electronic document under this chapter, the priority of the security interest shall be determined by the applicable Federal or State law.
(6) No electronic receipt required
A person shall not be required to issue in electronic form a receipt or document with respect to an agricultural product.
(7) Option for non-federally licensed warehouse operators
Notwithstanding any other provision of this chapter, a warehouse operator not licensed under this chapter may, at the option of the warehouse operator and in accordance with regulations established by the Secretary, issue electronic receipts and transfer other electronic documents in accordance with this chapter.
(8) Application to State-licensed warehouse operators
This subsection shall not apply to a warehouse operator that is licensed under State law to store agricultural commodities in a warehouse in the State if the warehouse operator elects—
(A) not to issue electronic receipts authorized under this subsection; or
(B) to issue electronic receipts authorized under State law.
(Aug. 11, 1916, ch. 313, pt. C, §11, as added Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2065.)
Editorial Notes
Prior Provisions
A prior section 250, acts Aug. 11, 1916, ch. 313, pt. C, §8, 39 Stat. 487; Mar. 2, 1931, ch. 366, §3, 46 Stat. 1463, authorized designation as bonded warehouse upon filing of bond and approval by Secretary, prior to the general amendment of this chapter by Pub. L. 106–472.
A prior section 11 of act Aug. 11, 1916, ch. 313, pt. C, was classified to section 252 of this title, prior to the general amendment of this chapter by Pub. L. 106–472.
§251. Conditions for delivery of agricultural products
(a) Prompt delivery
In the absence of a lawful excuse, a warehouse operator shall, without unnecessary delay, deliver the agricultural product stored or handled in the warehouse on a demand made by—
(1) the holder of the receipt for the agricultural product; or
(2) the person that deposited the product, if no receipt has been issued.
(b) Payment to accompany demand
Prior to delivery of the agricultural product, payment of the accrued charges associated with the storage of the agricultural product, including satisfaction of the warehouseman's lien, shall be made if requested by the warehouse operator.
(c) Surrender of receipt
When the holder of a receipt requests delivery of an agricultural product covered by the receipt, the holder shall surrender the receipt to the warehouse operator, in the manner prescribed by the Secretary, to obtain the agricultural product.
(d) Cancellation of receipt
A warehouse operator shall cancel each receipt returned to the warehouse operator upon the delivery of the agricultural product for which the receipt was issued.
(Aug. 11, 1916, ch. 313, pt. C, §12, as added Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2067.)
Editorial Notes
Prior Provisions
A prior section 251, acts Aug. 11, 1916, ch. 313, pt. C, §10, 39 Stat. 487; Mar. 2, 1931, ch. 366, §5, 46 Stat. 1464; Pub. L. 97–35, title I, §158(a)(1), Aug. 13, 1981, 95 Stat. 375, authorized fee for warehouse examination, inspection, and licensing, prior to the general amendment of this chapter by Pub. L. 106–472. See section 243 of this title.
A prior section 12 of act Aug. 11, 1916, ch. 313, pt. C, was classified to section 253 of this title, prior to the general amendment of this chapter by Pub. L. 106–472.
§252. Suspension or revocation of licenses
(a) In general
After providing notice and an opportunity for a hearing in accordance with this section, the Secretary may suspend or revoke any license issued, or approval for an activity provided, under this chapter—
(1) for a material violation of, or failure to comply, with any provision of this chapter (including regulations promulgated under this chapter); or
(2) on the ground that unreasonable or exorbitant charges have been imposed for services rendered.
(b) Temporary suspension
The Secretary may temporarily suspend a license or approval for an activity under this chapter prior to an opportunity for a hearing for any violation of, or failure to comply with, any provision of this chapter (including regulations promulgated under this chapter).
(c) Authority to conduct hearings
The agency within the Department that is responsible for administering regulations promulgated under this chapter shall have exclusive authority to conduct any hearing required under this section.
(d) Judicial review
(1) Jurisdiction
A final administrative determination issued subsequent to a hearing may be reviewable only in a district court of the United States.
(2) Procedure
The review shall be conducted in accordance with the standards set forth in section 706(2) of title 5.
(Aug. 11, 1916, ch. 313, pt. C, §13, as added Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2067.)
Editorial Notes
Prior Provisions
A prior section 252, acts Aug. 11, 1916, ch. 313, pt. C, §11, 39 Stat. 487; Feb. 23, 1923, ch. 106, 42 Stat. 1283; Mar. 2, 1931, ch. 366, §6, 46 Stat. 1464, authorized license to classify, grade, or weigh agricultural products, prior to the general amendment of this chapter by Pub. L. 106–472. See section 242 of this title.
A prior section 13 of act Aug. 11, 1916, ch. 313, pt. C, was classified to section 254 of this title, prior to the general amendment of this chapter by Pub. L. 106–472.
§253. Public information
(a) In general
The Secretary may release to the public the names, addresses, and locations of all persons—
(1) that have been licensed under this chapter or that have been approved to engage in an activity under this chapter; and
(2) with respect to which a license or approval has been suspended or revoked under section 252 of this title, the results of any investigation made or hearing conducted under this chapter, including the reasons for the suspension or revocation.
(b) Confidentiality
Except as otherwise provided by law, an officer, employee, or agent of the Department shall not divulge confidential business information obtained during a warehouse examination or other function performed as part of the duties of the officer, employee, or agent under this chapter.
(Aug. 11, 1916, ch. 313, pt. C, §14, as added Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2068.)
Editorial Notes
Prior Provisions
A prior section 253, acts Aug. 11, 1916, ch. 313, pt. C, §12, 39 Stat. 487; Feb. 23, 1923, ch. 106, 42 Stat. 1283; Mar. 2, 1931, ch. 366, §7, 46 Stat. 1464, related to suspension and revocation of license to classify, grade, or weigh, prior to the general amendment of this chapter by Pub. L. 106–472. See section 252 of this title.
A prior section 14 of act Aug. 11, 1916, ch. 313, pt. C, was classified to section 255 of this title, prior to the general amendment of this chapter by Pub. L. 106–472.
§254. Penalties for noncompliance
If a person fails to comply with any requirement of this chapter (including regulations promulgated under this chapter), the Secretary may assess, on the record after an opportunity for a hearing, a civil penalty—
(1) of not more than $25,000 per violation, if an agricultural product is not involved in the violation; or
(2) of not more than 100 percent of the value of the agricultural product, if an agricultural product is involved in the violation.
(Aug. 11, 1916, ch. 313, pt. C, §15, as added Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2068.)
Editorial Notes
Prior Provisions
A prior section 254, act Aug. 11, 1916, ch. 313, pt. C, §13, 39 Stat. 488, prohibited discrimination by warehousemen, prior to the general amendment of this chapter by Pub. L. 106–472. See section 247 of this title.
A prior section 15 of act Aug. 11, 1916, ch. 313, pt. C, was classified to section 256 of this title, prior to the general amendment of this chapter by Pub. L. 106–472.
§255. Jurisdiction and arbitration
(a) Federal jurisdiction
A district court of the United States shall have exclusive jurisdiction over any action brought under this chapter without regard to the amount in controversy or the citizenship of the parties.
(b) Arbitration
Nothing in this chapter prevents the enforceability of an agreement to arbitrate that would otherwise be enforceable under chapter 1 of title 9.
(Aug. 11, 1916, ch. 313, pt. C, §16, as added Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2068.)
Editorial Notes
Prior Provisions
A prior section 255, act Aug. 11, 1916, ch. 313, pt. C, §14, 39 Stat. 488, deemed deposit of products in a licensed warehouse as deposit subject to this chapter, prior to the general amendment of this chapter by Pub. L. 106–472.
A prior section 16 of act Aug. 11, 1916, ch. 313, pt. C, was classified to section 258 of this title, prior to the general amendment of this chapter by Pub. L. 106–472.
§256. Authorization of appropriations
There are authorized to be appropriated such sums as are necessary to carry out this chapter.
(Aug. 11, 1916, ch. 313, pt. C, §17, as added Pub. L. 106–472, title II, §201, Nov. 9, 2000, 114 Stat. 2068.)
Editorial Notes
Prior Provisions
A prior section 256, acts Aug. 11, 1916, ch. 313, pt. C, §15, 39 Stat. 488; Feb. 23, 1923, ch. 106, 42 Stat. 1283, related to inspection and grading of products stored, prior to the general amendment of this chapter by Pub. L. 106–472.
A prior section 17 of act Aug. 11, 1916, ch. 313, pt. C, was classified to section 259 of this title, prior to the general amendment of this chapter by Pub. L. 106–472.
Prior sections 257 to 273 were omitted in the general amendment of this chapter by Pub. L. 106–472.
Section 257, acts Aug. 11, 1916, ch. 313, pt. C, §19, 39 Stat. 489; Feb. 23, 1923, ch. 106, 42 Stat. 1284, authorized Secretary to promulgate standards for agricultural products. See section 244 of this title.
Section 258, act Aug. 11, 1916, ch. 313, pt. C, §16, 39 Stat. 488, related to mingling of stored products. See section 248 of this title.
Section 259, acts Aug. 11, 1916, ch. 313, pt. C, §17, 39 Stat. 488; Pub. L. 99–260, §14, Mar. 20, 1986, 100 Stat. 54; Pub. L. 101–624, title V, §508(a), Nov. 28, 1990, 104 Stat. 3441; Pub. L. 102–237, title X, §1009, Dec. 13, 1991, 105 Stat. 1898; Pub. L. 102–553, §1, Oct. 28, 1992, 106 Stat. 4140, required issuance of receipts for products stored and set forth provisions relating to central filing system and transfer of stored products. See sections 249 and 250 of this title.
Section 260, acts Aug. 11, 1916, ch. 313, pt. C, §18, 39 Stat. 488; July 24, 1919, ch. 26, 41 Stat. 266; Feb. 23, 1923, ch. 106, 42 Stat. 1284, related to contents of receipts. See section 250 of this title.
Section 261, act Aug. 11, 1916, ch. 313, pt. C, §20, 39 Stat. 489, related to issuance of further receipt with original outstanding. See section 250 of this title.
Section 262, act Aug. 11, 1916, ch. 313, pt. C, §21, 39 Stat. 489, required delivery on demand of products stored and set forth conditions to delivery. See section 251 of this title.
Section 263, act Aug. 11, 1916, ch. 313, pt. C, §22, 39 Stat. 490, related to cancellation of receipt upon delivery of product stored. See section 251 of this title.
Section 264, act Aug. 11, 1916, ch. 313, pt. C, §23, 39 Stat. 490, related to recording and reporting requirements and directed compliance with this chapter and regulations. See section 246 of this title.
Section 265, act Aug. 11, 1916, ch. 313, pt. C, §24, 39 Stat. 490, authorized Secretary to examine stored products and publish findings. See sections 242 and 253 of this title.
Section 266, act Aug. 11, 1916, ch. 313, pt. C, §26, 39 Stat. 490, authorized publication of investigation results, list of terminated licenses, and names and locations of bonded warehouses. See section 253 of this title.
Section 267, act Aug. 11, 1916, ch. 313, pt. C, §27, 39 Stat. 490, authorized examination of books and records of warehousemen. See section 242 of this title.
Section 268, act Aug. 11, 1916, ch. 313, pt. C, §28, 39 Stat. 490, authorized rules and regulations.
Section 269, acts Aug. 11, 1916, ch. 313, pt. C, §29, 39 Stat. 490; Feb. 23, 1923, ch. 106, 42 Stat. 1285; Mar. 2, 1931, ch. 366, §9, 46 Stat. 1465, related to cooperation with States, exclusivity of Secretary's authority, and preemption of laws. See section 242 of this title.
Section 270, acts Aug. 11, 1916, ch. 313, pt. C, §30, 39 Stat. 490; Feb. 23, 1923, ch. 106, 42 Stat. 1285; Mar. 2, 1931, ch. 366, §10, 46 Stat. 1465; Pub. L. 101–624, title V, §508(b), Nov. 28, 1990, 104 Stat. 3443, set forth punishment for violations of this chapter. See section 254 of this title.
Section 271, acts Aug. 11, 1916, ch. 313, pt. C, §31, 39 Stat. 491; Pub. L. 97–35, title I, §158(a)(2), Aug. 13, 1981, 95 Stat. 376, authorized appropriations and employment of temporary personnel. See section 256 of this title.
Section 272, act Aug. 11, 1916, ch. 313, pt. C, §32, 39 Stat. 491, related to separability of provisions.
Section 273, act Aug. 11, 1916, ch. 313, pt. C, §33, 39 Stat. 491, reserved right to amend, alter, or repeal this chapter.
CHAPTER 11—HONEYBEES
§281. Honeybee importation
(a) In general
The Secretary of Agriculture is authorized to prohibit or restrict the importation or entry of honeybees and honeybee semen into or through the United States in order to prevent the introduction and spread of diseases and parasites harmful to honeybees, the introduction of genetically undesirable germ plasm of honeybees, or the introduction and spread of undesirable species or subspecies of honeybees and the semen of honeybees.
(b) Regulations
The Secretary of Agriculture and the Secretary of the Treasury are each authorized to prescribe such regulations as the respective Secretary determines necessary to carry out this section.
(c) Enforcement
Honeybees or honeybee semen offered for importation into, intercepted entering, or having entered the United States, other than in accordance with regulations promulgated by the Secretary of Agriculture and the Secretary of the Treasury, shall be destroyed or immediately exported.
(d) "Honeybee" defined
As used in this chapter, the term "honeybee" means all life stages and the germ plasm of honeybees of the genus Apis, except honeybee semen.
(Aug. 31, 1922, ch. 301, §1, 42 Stat. 833; Pub. L. 87–539, §1, July 19, 1962, 76 Stat. 169; Pub. L. 94–319, §1, June 25, 1976, 90 Stat. 709; Pub. L. 103–182, title III, §361(d)(2), Dec. 8, 1993, 107 Stat. 2123; Pub. L. 103–465, title IV, §431(e), Dec. 8, 1994, 108 Stat. 4968.)
Editorial Notes
Amendments
1994—Pub. L. 103–465 amended section generally, substituting present provisions for former subsecs. (a) to (e) restricting importation of honeybees and honeybee semen into United States, providing for promulgation of rules and regulations as to such importation, providing for destruction or immediate exportation of nonexcepted honeybees or honeybee semen offered for import or intercepted, and defining "honeybee".
1993—Subsec. (a)(3). Pub. L. 103–182, §361(d)(2)(A), added par. (3).
Subsec. (b). Pub. L. 103–182, §361(d)(2)(B), inserted "(1)" after "only from" and added cl. (2).
1976—Pub. L. 94–319 incorporated existing provisions, which related only to honeybees, into subsecs. (a) to (e) relating to honeybees and honeybee semen, making honeybee provisions applicable to all life stages and the germ plasm of honeybees instead of only to honeybees in the adult stage, restating purpose of prohibiting importation of honeybees and restating conditions to be determined by Secretary of Agriculture with respect to countries from which honeybees may be imported.
1962—Pub. L. 87–539 enlarged prohibition against importation of honeybees to include the honeybee of the genus Apis instead of only the honeybee Apis mellifica and restricted permission to import the honeybee to countries which take adequate precautions to prevent importation of honeybees from countries where dangerous diseases exist.
Statutory Notes and Related Subsidiaries
Effective Date of 1994 Amendment
Amendment by Pub. L. 103–465 effective on the date of entry into force of the WTO Agreement with respect to the United States (Jan. 1, 1995), except as otherwise provided, see section 451 of Pub. L. 103–465, set out as an Effective Date note under section 3601 of Title 19, Customs Duties.
Short Title
Act Aug. 31, 1922, as amended, which is classified to this chapter, is popularly known as the "Honeybee Act".
Transfer of Functions
For transfer of functions of the Secretary of Agriculture relating to agricultural import and entry inspection activities under this section to the Secretary of Homeland Security, and for treatment of related references, see sections 231, 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
§282. Punishment for unlawful importation
Any person who violates any provision of section 281 of this title or any regulation issued under it is guilty of an offense against the United States and shall, upon conviction, be fined not more than $1,000, or imprisoned for not more than one year, or both.
(Aug. 31, 1922, ch. 301, §2, 42 Stat. 834; Pub. L. 94–319, §2, June 25, 1976, 90 Stat. 709.)
Editorial Notes
Amendments
1976—Pub. L. 94–319 inserted reference to regulations, substituted characterization of violation as offense against the United States for characterization as a misdemeanor, increased maximum fine to $1,000 from $500 and struck out provision relating to discretion of the court.
§283. Propagation of stock and release of germ plasm
The Secretary of Agriculture may propagate bee-breeding stock and may release bee germ plasm to the public.
(Sept. 21, 1944, ch. 412, title I, §103, 58 Stat. 735; Oct. 31, 1951, ch. 654, §3(1), 65 Stat. 708; Pub. L. 97–98, title XI, §1120, Dec. 22, 1981, 95 Stat. 1273.)
Editorial Notes
Codification
This section was not enacted as part of act Aug. 31, 1922, which comprises this chapter.
Provisions similar to this section were contained in the following prior Department of Agriculture Appropriation Acts:
June 28, 1944, ch. 296, 58 Stat. 439.
July 12, 1943, ch. 215, 57 Stat. 407.
Amendments
1981—Pub. L. 97–98 inserted "and may release bee germ plasm to the public".
1951—Act Oct. 31, 1951, struck out provisions relating to sale of surplus bee-breeding stock, and the fixing of rates and disposition of proceeds in connection therewith.
Statutory Notes and Related Subsidiaries
Effective Date of 1981 Amendment
Amendment by Pub. L. 97–98 effective on Dec. 22, 1981, see section 1801 of Pub. L. 97–98, set out as an Effective Date note under section 4301 of this title.
§284. Eradication and control of undesirable species and subspecies
(a) Operations in United States
The Secretary of Agriculture either independently or in cooperation with States or political subdivisions thereof, farmers' associations, and similar organizations and individuals, is authorized to carry out operations or measures in the United States to eradicate, suppress, control, and to prevent or retard the spread of undesirable species and subspecies of honeybees.
(b) Cooperation with certain foreign governments; measure and character; consultation with Secretary of State
The Secretary of Agriculture is authorized to cooperate with the Governments of Canada, Mexico, Guatemala, Belize, Honduras, El Salvador, Nicaragua, Costa Rica, Panama, and Colombia, or the local authorities thereof, in carrying out necessary research, surveys, and control operations in those countries in connection with the eradication, suppression, control, and prevention or retardation of the spread of undesirable species and subspecies of honeybees, including but not limited to Apis mellifera adansonii, commonly known as the African or Brazilian honeybee. The measure and character of cooperation carried out under this subsection on the part of such countries, including the expenditure or use of funds appropriated pursuant to this chapter, shall be such as may be prescribed by the Secretary of Agriculture. Arrangements for the cooperation authorized by this subsection shall be made through and in consultation with the Secretary of State.
(c) Responsibility for authority to carry out operations
In performing the operations or measures authorized in this chapter, the cooperating foreign country, State, or local agency shall be responsible for the authority to carry out such operations or measures on all lands and properties within the foreign country or State, other than those owned or controlled by the Federal Government of the United States, and for such other facilities and means as in the discretion of the Secretary of Agriculture are necessary.
(Aug. 31, 1922, ch. 301, §3, as added Pub. L. 94–319, §3, June 25, 1976, 90 Stat. 709.)
Statutory Notes and Related Subsidiaries
Indemnification for Beekeepers
Pub. L. 91–524, title VIII, §804, Nov. 30, 1970, 84 Stat. 1382, as amended by Pub. L. 93–86, §1(27)(A), Aug. 10, 1973, 87 Stat. 237; Pub. L. 95–113, title II, §207, Sept. 29, 1977, 91 Stat. 921, authorized the Secretary of Agriculture to make indemnity payments, based on net loss, to beekeepers who through no fault of their own lost honey bees after Jan. 1, 1967, as a result of utilization of economic poisons, registered and approved for use by the Federal Government, near or adjacent to the beehives, with this section expired after Sept. 30, 1981.
§285. Uses of funds
Funds appropriated to carry out the provisions of this chapter may also be used for printing and binding without regard to section 501 of title 44 for employment, by contract or otherwise, of civilian nationals of Canada, Mexico, Guatemala, Belize, Honduras, El Salvador, Nicaragua, Costa Rica, Panama, and Colombia for services abroad, and for the construction and operation of research laboratories, quarantine stations, and other buildings and facilities.
(Aug. 31, 1922, ch. 301, §4, as added Pub. L. 94–319, §3, June 25, 1976, 90 Stat. 710.)
§286. Authorization of appropriations
There are hereby authorized to be appropriated such sums as may be necessary to carry out the provisions of this chapter.
(Aug. 31, 1922, ch. 301, §5, as added Pub. L. 94–319, §3, June 25, 1976, 90 Stat. 710.)
CHAPTER 12—ASSOCIATIONS OF AGRICULTURAL PRODUCTS PRODUCERS
§291. Authorization of associations; powers
Persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. Such associations may have marketing agencies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes: Provided, however, That such associations are operated for the mutual benefit of the members thereof, as such producers, and conform to one or both of the following requirements:
First. That no member of the association is allowed more than one vote because of the amount of stock or membership capital he may own therein, or,
Second. That the association does not pay dividends on stock or membership capital in excess of 8 per centum per annum.
And in any case to the following:
Third. That the association shall not deal in the products of nonmembers to an amount greater in value than such as are handled by it for members.
(Feb. 18, 1922, ch. 57, §1, 42 Stat. 388.)
§292. Monopolizing or restraining trade and unduly enhancing prices prohibited; remedy and procedure
If the Secretary of Agriculture shall have reason to believe that any such association monopolizes or restrains trade in interstate or foreign commerce to such an extent that the price of any agricultural product is unduly enhanced by reason thereof, he shall serve upon such association a complaint stating his charge in that respect, to which complaint shall be attached, or contained therein, a notice of hearing, specifying a day and place not less than thirty days after the service thereof, requiring the association to show cause why an order should not be made directing it to cease and desist from monopolization or restraint of trade. An association so complained of may at the time and place so fixed show cause why such order should not be entered. The evidence given on such a hearing shall be taken under such rules and regulations as the Secretary of Agriculture may prescribe, reduced to writing, and made a part of the record therein. If upon such hearing the Secretary of Agriculture shall be of the opinion that such association monopolizes or restrains trade in interstate or foreign commerce to such an extent that the price of any agricultural product is unduly enhanced thereby, he shall issue and cause to be served upon the association an order reciting the facts found by him, directing such association to cease and desist from monopolization or restraint of trade. On the request of such association or if such association fails or neglects for thirty days to obey such order, the Secretary of Agriculture shall file in the district court in the judicial district in which such association has its principal place of business a certified copy of the order and of all the records in the proceeding, together with a petition asking that the order be enforced, and shall give notice to the Attorney General and to said association of such filing. Such district court shall thereupon have jurisdiction to enter a decree affirming, modifying, or setting aside said order, or enter such other decree as the court may deem equitable, and may make rules as to pleadings and proceedings to be had in considering such order. The place of trial may, for cause or by consent of parties, be changed as in other causes.
The facts found by the Secretary of Agriculture and recited or set forth in said order shall be prima facie evidence of such facts, but either party may adduce additional evidence. The Department of Justice shall have charge of the enforcement of such order. After the order is so filed in such district court and while pending for review therein the court may issue a temporary writ of injunction forbidding such association from violating such order or any part thereof. The court may, upon conclusion of its hearing, enforce its decree by a permanent injunction or other appropriate remedy. Service of such complaint and of all notices may be made upon such association by service upon any officer or agent thereof engaged in carrying on its business, or on any attorney authorized to appear in such proceedings for such association, and such service shall be binding upon such association, the officers, and members thereof.
(Feb. 18, 1922, ch. 57, §2, 42 Stat. 388.)
Statutory Notes and Related Subsidiaries
Restriction on Use of Funds Respecting Study, Investigation, or Prosecution of any Agricultural Cooperative or Study or Investigation of any Agricultural Marketing Orders
For provisions restricting the use of funds authorized to be appropriated to carry out section 41 et seq. of Title 15, Commerce and Trade, for fiscal year 1980, 1981, or 1982, for the purpose of conducting any study, investigation, or prosecution of any provisions of this chapter, see section 20 of Pub. L. 96–252, set out as a note under section 57c of Title 15.
CHAPTER 13—AGRICULTURAL AND MECHANICAL COLLEGES
SUBCHAPTER I—COLLEGE-AID LAND APPROPRIATION
SUBCHAPTER II—COLLEGE-AID ANNUAL APPROPRIATION
SUBCHAPTER III—RETIREMENT OF EMPLOYEES
SUBCHAPTER IV—AGRICULTURAL EXTENSION WORK APPROPRIATION
SUBCHAPTER I—COLLEGE-AID LAND APPROPRIATION
§301. Land grant aid of colleges
There is granted to the several States, for the purposes hereinafter mentioned in this subchapter, an amount of public land, to be apportioned to each State a quantity equal to thirty thousand acres for each Senator and Representative in Congress to which the States are respectively entitled by the apportionment under the census of 1860: Provided, That no mineral lands shall be selected or purchased under the provisions of said sections.
(July 2, 1862, ch. 130, §1, 12 Stat. 503.)
Editorial Notes
Codification
Act July 2, 1862, with the exception of section 7, was not incorporated into the Revised Statutes, probably because the grants made thereby were regarded as executed, and the provisions incidental thereto as temporary. By act Mar. 3, 1883, ch. 102, 22 Stat. 484, however, section 4 of the original act was amended to read as set out under section 304 of this title.
Statutory Notes and Related Subsidiaries
Short Title
Act July 2, 1862, which is classified to this subchapter, is popularly known as the "Morrill Act" and also as the "First Morrill Act".
Equity in Educational Land Grant Status
Pub. L. 107–171, title VII, §7201(e), May 13, 2002, 116 Stat. 437, provided that: "Not later than 1 year after the date of enactment of this Act [May 13, 2002], the Secretary of Agriculture shall submit a report containing recommended criteria for designating additional 1994 Institutions [see section 532 of Pub. L. 103–382, set out below] to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate."
Pub. L. 106–387, §1(a) [title I], Oct. 28, 2000, 114 Stat. 1549, 1549A-7, provided in part: "That hereafter, any distribution of the adjusted income from the Native American Institutions Endowment Fund is authorized to be used for facility renovation, repair, construction, and maintenance, in addition to other authorized purposes."
Pub. L. 103–382, title V, part C, Oct. 20, 1994, 108 Stat. 4048, as amended by Pub. L. 104–127, title VIII, §882, Apr. 4, 1996, 110 Stat. 1175; Pub. L. 105–185, title II, §251, title III, §301(g), June 23, 1998, 112 Stat. 557, 563; Pub. L. 105–332, §3(d), Oct. 31, 1998, 112 Stat. 3126; Pub. L. 107–171, title VII, §§7126(f)–7128, 7201(a)–(d), May 13, 2002, 116 Stat. 435–437; Pub. L. 108–204, title I, §128, Mar. 2, 2004, 118 Stat. 547; Pub. L. 108–447, div. A, title VII, §777, Dec. 8, 2004, 118 Stat. 2849; Pub. L. 110–234, title VII, §7402(a)–(e), May 22, 2008, 122 Stat. 1245, 1246; Pub. L. 110–246, §4(a), title VII, §7402(a)–(e), June 18, 2008, 122 Stat. 1664, 2007; Pub. L. 110–315, title IX, §941(k)(2)(A), Aug. 14, 2008, 122 Stat. 3465; Pub. L. 113–79, title VII, §7402(a)(1), (b)–(d), Feb. 7, 2014, 128 Stat. 893, 894; Pub. L. 115–334, title VII, §§7502(a)(1), (b)–(d), 7609(b), Dec. 20, 2018, 132 Stat. 4820, 4821, 4830, provided that:
"SEC. 531. SHORT TITLE.
"This part may be cited as the 'Equity in Educational Land-Grant Status Act of 1994'.
"SEC. 532. DEFINITION OF 1994 INSTITUTION.
"In this part, the term '1994 Institution' means any of the following colleges:
"(1) Aaniiih Nakoda College.
"(2) Bay Mills Community College.
"(3) Blackfeet Community College.
"(4) Cankdeska Cikana Community College.
"(5) Chief Dull Knife College.
"(6) College of Menominee Nation.
"(7) College of the Muscogee Nation.
"(8) D–Q University.
"(9) Dine College.
"(10) Fond du Lac Tribal and Community College.
"(11) Fort Peck Community College.
"(12) Haskell Indian Nations University.
"(13) Ilisagvik College.
"(14) Institute of American Indian and Alaska Native Culture and Arts Development.
"(15) Keweenaw Bay Ojibwa Community College.
"(16) Lac Courte Oreilles Ojibwa Community College.
"(17) Leech Lake Tribal College.
"(18) Little Big Horn College.
"(19) Little Priest Tribal College.
"(20) Navajo Technical University.
"(21) Nebraska Indian Community College.
"(22) Northwest Indian College.
"(23) Nueta Hidatsa Sahnish College.
"(24) Oglala Lakota College.
"(25) Red Lake Nation College.
"(26) Saginaw Chippewa Tribal College.
"(27) Salish Kootenai College.
"(28) Sinte Gleska University.
"(29) Sisseton Wahpeton College.
"(30) Sitting Bull College.
"(31) Southwestern Indian Polytechnic Institute.
"(32) Stone Child College.
"(33) Tohono O'odham Community College.
"(34) Turtle Mountain Community College.
"(35) United Tribes Technical College.
"(36) White Earth Tribal and Community College.
"SEC. 533. LAND-GRANT STATUS FOR 1994 INSTITUTIONS.
"(a)
"(1)
"(2) 1994
"(i) the Act of March 2, 1887 (24 Stat. 440, chapter 314; 7 U.S.C. 361a et seq.);
"(ii) the Smith-Lever Act (7 U.S.C. 341 et seq.), except as provided under—
"(I) section 3(b)(3) of that Act (7 U.S.C. 343(b)(3)); or
"(II) the third sentence of section 3(d) of that Act (7 U.S.C. 343(d)); or
"(iii) the Act of August 30, 1890 (26 Stat. 417, chapter 841; 7 U.S.C. 321 et seq.) (commonly known as the Second Morrill Act).
"(B) In lieu of receiving donations under the provisions of the Act of July 2, 1862 (12 Stat. 503; 7 U.S.C. 301 et seq.) (commonly known as the First Morrill Act), relating to the donations of public land or scrip for the endowment and maintenance of colleges for the benefit of agriculture and the mechanic arts, 1994 Institutions shall receive funding pursuant to the authorization under subsection (b).
"(3)
"(A) is accredited by a nationally recognized accrediting agency or association determined by the Secretary, in consultation with the Secretary of Education, to be a reliable authority regarding the quality of training offered; or
"(B) is making progress toward the accreditation, as determined by the nationally recognized accrediting agency or association.
"(b)
"(c)
"(1)
"(2)
"(A) amounts made available by appropriations pursuant to subsection (b) (hereafter in this subsection referred to as the 'endowment fund corpus'); and
"(B) interest earned on the endowment fund corpus.
"(3)
"(4)
"(A) 60 percent of the adjusted income shall be distributed among the 1994 Institutions on a pro rata basis. The proportionate share of the adjusted income received by a 1994 Institution under this subparagraph shall be based on the Indian student count (as defined in section 2(a) of the Tribally Controlled Colleges and Universities Assistance Act of 1978 (25 U.S.C. 1801(a))).
"(B) 40 percent of the adjusted income shall be distributed in equal shares to the 1994 Institutions.
"(d)
"SEC. 534. APPROPRIATIONS.
"(a)
"(1)
"(A) $100,000; multiplied by
"(B) the number of 1994 Institutions.
"(2)
"(A) the total amount made available by appropriations pursuant to paragraph (1); divided by
"(B) the number of 1994 Institutions.
"(3)
"(A)
"(B)
"(i) declines to accept funds under paragraph (2); or
"(ii) fails to meet the accreditation requirements under section 533(a)(3).
"(b)
"SEC. 535. INSTITUTIONAL CAPACITY BUILDING GRANTS.
"(a)
"(1)
"(2)
"(3)
"(b)
"(1)
"(2)
"(A) on the basis of a competitive application process under which appropriate officials of 1994 Institutions may submit applications to the Secretary in such form and manner as the Secretary may prescribe; and
"(B) in such manner as to ensure geographic diversity with respect to the 1994 Institutions that are the subject of the grants.
"(3)
"(4)
"(c)
"SEC. 536. RESEARCH GRANTS.
"(a)
"(b)
"(1) the Agricultural Research Service of the Department of Agriculture; or
"(2) at least 1—
"(A) other land-grant college or university (exclusive of another 1994 Institution);
"(B) non-land-grant college of agriculture (as defined in section 1404 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3103)); or
"(C) cooperating forestry school (as defined in that section).
"(c)
[Pub. L. 115–334, title VII, §7502(a)(2), Dec. 20, 2018, 132 Stat. 4820, provided that: "The amendment made by paragraph (1) [amending section 532 of Pub. L. 103–382, set out above] shall take effect on the date of the enactment of this Act [Dec. 20, 2018]."]
[Pub. L. 113–79, title VII, §7402(a)(2), Feb. 7, 2014, 128 Stat. 894, provided that: "The amendments made by paragraph (1) [amending section 532 of Pub. L. 103–382, set out above] shall take effect on October 1, 2014."]
[Pub. L. 110–234, title VII, §7402(f), May 22, 2008, 122 Stat. 1246, and Pub. L. 110–246, §4(a), title VII, §7402(f), June 18, 2008, 122 Stat. 1664, 2007, provided that: "The amendment made by subsection (a) [amending section 532 of Pub. L. 103–382, set out above] takes effect on October 1, 2008."
[Pub. L. 110–234 and Pub. L. 110–246 enacted identical provisions. Pub. L. 110–234 was repealed by section 4(a) of Pub. L. 110–246, set out as a note under section 8701 of this title.]
Land Grant Colleges in American Samoa, Northern Mariana Islands, and Trust Territory of the Pacific Islands
Pub. L. 96–374, title XIII, §1361(c), (d), Oct. 3, 1980, 94 Stat. 1502, as amended by Pub. L. 99–396, §9(c), Aug. 27, 1986, 100 Stat. 840, provided that:
"(c) Any provision of any Act of Congress relating to the operation of or provision of assistance to a land grant college in the Virgin Islands or Guam shall apply to the land grant college in American Samoa, the Northern Mariana Islands, and the Trust Territory of the Pacific Islands (other than the Northern Mariana Islands) in the same manner and to the same extent.
"(d) Nothing in this section [amending section 326a of this title and provisions set out as a note below] shall be construed to interfere with or affect any of the provisions of the April 17, 1900 Treaty of Cession of Tutuila and Aunu'u Islands or the July 16, 1904 Treaty of Cession of the Manu'a Islands as ratified by the Act of February 20, 1929 (45 Stat. 1253) and the Act of May 22, 1929 (46 Stat. 4) [48 U.S.C. 1661]."
[For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions.]
College of the Virgin Islands, Community College of American Samoa, College of Micronesia, Northern Marianas College, and University of Guam; Land-Grant Status; Authorization of Appropriations
Pub. L. 92–318, title V, §506(a), (b), June 23, 1972, 86 Stat. 350, as amended by Pub. L. 96–374, title XIII, §1361(a), Oct. 3, 1980, 94 Stat. 1501; Pub. L. 99–396, §9(a), Aug. 27, 1986, 100 Stat. 840, as amended by Pub. L. 102–247, title III, §305, Feb. 24, 1992, 106 Stat. 39, provided that:
"(a) The College of the Virgin Islands, the Community College of American Samoa, the College of Micronesia[,] the Northern Marianas College, and the University of Guam shall be considered land-grant colleges established for the benefit or agriculture and mechanic arts in accordance with the provisions of the Act of July 2, 1862, as amended (12 Stat. 503; 7 U.S.C. 301–305, 307, 308).
"(b) In lieu of extending to the Virgin Islands, Guam, American Samoa, Micronesia, and the Northern Mariana Islands those provisions of the Act of July 2, 1862, as amended, relating to donations of public land or land scrip for the endowment and maintenance of colleges or the benefit of agriculture and the mechanic arts, there is authorized to be appropriated $3,000,000 to the Virgin Islands and $3,000,000 to Guam and an equal amount to American Samoa, Micronesia, and to the Northern Mariana Islands. Amounts appropriated pursuant to this section shall be held and considered to have been granted to the Virgin Islands, Guam, American Samoa, Micronesia, and the Northern Mariana Islands subject to the provisions of that Act applicable to the proceeds from the sale of land or land scrip."
Exchange of Land in Missouri
Pub. L. 85–282, Sept. 4, 1957, 71 Stat. 607, provided: "That, notwithstanding the provisions of the Act entitled 'An Act donating public lands to the several States and Territories which may provide colleges for the benefit of agriculture and the mechanic arts', approved July 2, 1862 (7 U.S.C. secs. 301–308), the State of Missouri is authorized to convey to the United States all right, title, and interest of such State in and to any land granted to such State under authority of such Act of July 2, 1862, which is located within the exterior boundaries of the national forests situated within such State, and, in exchange therefor, the Secretary of Agriculture is authorized to convey to the State of Missouri all right, title, and interest of the United States in and to not to exceed an equal value of national forest lands (as determined by the Secretary) situated within such State.
"
"
Cooperation in Placement of Domestic Farm Labor
Act Apr. 28, 1947, ch. 43, §2(b), 61 Stat. 55, provided that: "The Secretary of Agriculture and the Secretary of Labor shall take such action as may be necessary to assure maximum cooperation between the agricultural extension services of the land-grant colleges and the State public employment agencies in the recruitment and placement of domestic farm labor and in the keeping of such records and information with respect thereto as may be necessary for the proper and efficient administration of the State unemployment compensation laws and of title V of the Servicemen's Readjustment Act of 1944, as amended (58 Stat. 295)."
Grants Not To Extend to Alaska
Land grant under Alaska Statehood provisions as being in lieu of grant of acreage under sections 301 to 305, 307, 308 of this title (declared not to extend to Alaska), see section 6(l) of Pub. L. 85–508, set out as a note preceding section 21 of Title 48, Territories and Insular Possessions.
Executive Documents
Admission of Alaska as State
Admission of Alaska into the Union was accomplished Jan. 3, 1959, on issuance of Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85–508, July 7, 1958, 72 Stat. 339, set out as notes preceding section 21 of Title 48, Territories and Insular Possessions.
§302. Method of apportionment and selection; issuance of land scrip
The land aforesaid, after being surveyed, shall be apportioned to the several States in sections or subdivisions of sections, not less than one-quarter of a section; and whenever there are public lands in a State subject to sale at private entry at $1.25 per acre, the quantity to which said State shall be entitled shall be selected from such lands within the limits of such State, and the Secretary of the Interior is directed to issue to each of the States in which there is not the quantity of public lands subject to sale at private entry at $1.25 per acre, to which said State may be entitled under the provisions of this subchapter, land scrip to the amount in acres for the deficiency of its distributive share; said scrip to be sold by said States and the proceeds thereof applied to the uses and purposes prescribed in said sections, and for no other use or purpose whatsoever: Provided, That in no case shall any State to which land scrip may thus be issued be allowed to locate the same within the limits of any other State, or of any Territory of the United States, but their assignees may thus locate said land scrip upon any of the unappropriated lands of the United States subject to sale at private entry at $1.25, or less, per acre: And provided further, That not more than one million acres shall be located by such assignees in any one of the States: And provided further, That no such location shall be made before July 2, 1863.
(July 2, 1862, ch. 130, §2, 12 Stat. 503.)
§303. Management expenses paid by State
All the expenses of management, superintendence, and taxes from date of selection of said lands, previous to their sales, and all expenses incurred in the management and disbursement of the moneys which may be received therefrom, shall be paid by the States to which they may belong, out of the treasury of said States, so that the entire proceeds of the sale of said lands shall be applied without any diminution whatever to the purposes in sections 304, 305, 307 and 308 of this title mentioned.
(July 2, 1862, ch. 130, §3, 12 Stat. 504.)
§304. Investment of proceeds of sale of land or scrip
All moneys derived from the sale of lands as provided in section 302 of this title by the States to which lands are apportioned and from the sales of land scrip provided for in said section shall be invested in bonds of the United States or of the States or some other safe bonds; or the same may be invested by the States having no State bonds, in any manner after the legislatures of such States shall have assented thereto and engaged that such funds shall yield a fair and reasonable rate of return, to be fixed by the State legislatures, and that the principal thereof shall forever remain unimpaired: Provided, That the moneys so invested or loaned shall constitute a perpetual fund, the capital of which shall remain forever undiminished (except so far as may be provided in section 305 of this title), and the interest of which shall be inviolably appropriated, by each State which may take and claim the benefit of this subchapter, to the endowment, support, and maintenance of at least one college where the leading object shall be, without excluding other scientific and classical studies and including military tactics, to teach such branches of learning as are related to agriculture and the mechanic arts, in such manner as the legislatures of the States may respectively prescribe, in order to promote the liberal and practical education of the industrial classes in the several pursuits and professions in life.
(July 2, 1862, ch. 130, §4, 12 Stat. 504; Mar. 3, 1883, ch. 102, 22 Stat. 484; Apr. 13, 1926, ch. 130, 44 Stat. 247.)
Editorial Notes
Amendments
1926—Act Apr. 13, 1926, substituted "bonds" for "stocks" and "a fair and reasonable rate of return, to be fixed by the State Legislatures" for "not less than 5 per centum upon the amount so invested", before proviso.
1883—Act Mar. 3, 1883, inserted "or the same may be invested by the States having no State stocks, in any other manner after the legislatures of such States shall have assented thereto, and engaged that such funds shall" after "other safe stocks" and substituted "yield" for "yielding", "principal" for "capital" and "unimpaired" for "undiminished".
§305. Conditions of grant
The grant of land and land scrip hereby authorized shall be made on the following conditions, to which, as well as to the provisions contained in said sections, the previous assent of the several States shall be signified by legislative acts:
First. If any portion of the fund invested, as provided by section 304 of this title, or any portion of the interest thereon, shall, by any action or contingency, be diminished or lost, it shall be replaced by the State to which it belongs, so that the capital of the fund shall remain forever undiminished; and the annual interest shall be regularly applied without diminution to the purposes mentioned in section 304 of this title, except that a sum, not exceeding 10 per centum upon the amount received by any State under the provisions of this subchapter, may be expended for the purchase of lands for sites or experimental farms, whenever authorized by the respective legislatures of said States.
Second. No portion of said fund, nor the interest thereon, shall be applied, directly or indirectly, under any pretense whatever, to the purchase, erection, preservation, or repair of any building or buildings.
Third. Any State which may take and claim the benefit of the provisions of this subchapter shall provide, within five years from the time of its acceptance as provided in subdivision seven of this section, at least not less than one college, as described in section 304 of this title, or the grant to such State shall cease; and said State shall be bound to pay the United States the amount received of any lands previously sold, and the title to purchasers under the State shall be valid.
Fourth. An annual report shall be made regarding the progress of each college, recording any improvements and experiments made, with their cost and results, and such other matters, including State industrial and economical statistics, as may be supposed useful; one copy of which shall be transmitted by mail, by each, to all the other colleges which may be endowed under the provisions of this subchapter, and also one copy to the Secretary of the Interior.
Fifth. When lands shall be selected from those which have been raised to double the minimum price, in consequence of railroad grants, they shall be computed to the States at the maximum price, and the number of acres proportionally diminished.
Sixth. No State while in a condition of rebellion or insurrection against the Government of the United States shall be entitled to the benefit of the provisions of this subchapter.
Seventh. No State shall be entitled to the benefits of the provisions of this subchapter unless it shall express its acceptance thereof by its legislature within three years from July 23, 1866: Provided, That when any Territory shall become a State and be admitted into the Union, such new State shall be entitled to the benefits of the provisions of said sections, by expressing the acceptance therein required within three years from the date of its admission into the Union, and providing the college or colleges within five years after such acceptance, as heretofore prescribed in this chapter.
(July 2, 1862, ch. 130, §5, 12 Stat. 504; July 23, 1866, ch. 209, 14 Stat. 208; Mar. 3, 1873, ch. 231, §3, 17 Stat. 559.)
Statutory Notes and Related Subsidiaries
Repeals
Subd. fourth was repealed in part by act March 3, 1873, which provided in part: "That all laws and parts of laws permitting the transmission by mail of any free matter whatever be, and the same are hereby, repealed from and after June thirtieth, eighteen hundred and seventy-three."
Subd. seventh formerly contained a proviso which read as follows: "Provided further, That any State which has prior to July 23, 1866, expressed its acceptance of the foregoing provisions of this chapter shall have the period of five years within which to provide at least one college, as described in the fourth section of said act, after the time for providing said college, according to the act of July second, eighteen hundred and sixty-two shall have expired."
§306. Repealed. Dec. 16, 1930, ch. 14, §1, 46 Stat. 1028
Section, act July 2, 1862, ch. 130, §6, 12 Stat. 505, related to time of location of land scrip.
§307. Fees for locating land scrip
The land officers shall receive the same fees for locating land scrip issued under the provisions of this subchapter as was on July 2, 1862, allowed for the location of military bounty land warrants under laws existing at that time: Provided, That their maximum compensation shall not be thereby increased.
(July 2, 1862, ch. 130, §7, 12 Stat. 505.)
§308. Reports by State governors of sale of scrip
The governors of the several States to which scrip shall be issued under the provisions of this subchapter shall be required to report annually to Congress all sales made of such scrip until the whole shall be disposed of, the amount received for the same, and what appropriation has been made of the proceeds.
(July 2, 1862, ch. 130, §8, 12 Stat. 505.)
§309. Land grants in the State of North Dakota
(a) Expenses
Notwithstanding section 303 of this title, the State of North Dakota shall manage the land granted to the State under section 301 of this title, including any proceeds from the land, in accordance with this section.
(b) Disposition of proceeds
Notwithstanding section 304 of this title, the State of North Dakota shall, with respect to any trust fund in which proceeds from the sale of land under this subchapter are deposited (referred to in this section as the "trust fund")—
(1) deposit all revenues earned by a trust fund into the trust fund;
(2) deduct the costs of administering a trust fund from each trust fund; and
(3) manage each trust fund to—
(A) preserve the purchasing power of the trust fund; and
(B) maintain stable distributions to trust fund beneficiaries.
(c) Distributions
Notwithstanding section 304 of this title, any distributions from trust funds in the State of North Dakota shall be made in accordance with section 2 of article IX of the Constitution of the State of North Dakota.
(d) Management
Notwithstanding section 305 of this title, the State of North Dakota shall manage the land granted under section 301 of this title, including any proceeds from the land, in accordance with this section.
(July 2, 1862, ch. 130, §9, as added Pub. L. 111–11, title XIII, §13001(b), Mar. 30, 2009, 123 Stat. 1446.)
SUBCHAPTER II—COLLEGE-AID ANNUAL APPROPRIATION
§321. Secretary of Agriculture to administer annual college-aid appropriation
The Secretary of Agriculture is charged with the proper administration of this subchapter.
(Aug. 30, 1890, ch. 841, §4, 26 Stat. 419; 1939 Reorg. Plan No. 1, §§201, 204, eff. July 1, 1939, 4 F.R. 2728, 53 Stat. 1424; 1953 Reorg. Plan No. 1, §§5, 8, eff. Apr. 11, 1953, 18 F.R. 2053, 67 Stat. 631; Pub. L. 96–88, title III, §301(a)(2)(E), Oct. 17, 1979, 93 Stat. 677; Pub. L. 97–98, title XIV, §1419, Dec. 22, 1981, 95 Stat. 1306.)
Editorial Notes
Codification
Section constitutes part of section 4 of act Aug. 30, 1890. Remainder of section 4 is classified to section 326 of this title.
Statutory Notes and Related Subsidiaries
Short Title
Act Aug. 30, 1890, as amended, which is classified to this subchapter, is popularly known as the "Agricultural College Act of 1890" and also as the "Second Morrill Act".
Transfer of Functions
Functions and duties of Secretary of Education under this subchapter transferred to Secretary of Agriculture by section 1419 of Pub. L. 97–98.
Functions of Secretary of Health, Education, and Welfare under this subchapter transferred to Secretary of Education by section 301(a)(2)(E) of Pub. L. 96–88, which is classified to section 3441(a)(2)(E) of Title 20, Education.
Functions of Federal Security Administrator transferred to Secretary of Health, Education, and Welfare and all agencies of Federal Security Agency transferred to Department of Health, Education, and Welfare by section 5 of 1953 Reorg. Plan No. 1, set out in the Appendix to Title 5, Government Organization and Employees. Federal Security Agency and office of Administrator abolished by section 8 of 1953 Reorg. Plan No. 1.
Prior to July 1, 1939, functions of Secretary of the Interior under this subchapter were carried out through Office of Education of Department of the Interior. Office of Education and its functions transferred to Federal Security Administrator by section 204 of 1939 Reorg. Plan No. 1, set out in the Appendix to Title 5.
Designation of Central State University as 1890 Institution
Pub. L. 113–79, title VII, §7129, Feb. 7, 2014, 128 Stat. 880, provided that:
"(a)
"(b)
"(1) section 1444 or 1445 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3221 and 3222);
"(2) section 3(d) of the Smith-Lever Act (7 U.S.C. 343(d)) to carry out the national education program established under section 1425 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3175);
"(3) the Renewable Resources Extension Act of 1978 (16 U.S.C. 1671 et seq.); or
"(4) Public Law 87–788 (commonly known as the McIntire-Stennis Cooperative Forestry Act; 16 U.S.C. 582a et seq.)."
West Virginia State College at Institute, West Virginia
Pub. L. 107–76, title VII, §753, Nov. 28, 2001, 115 Stat. 740, provided that: "Hereafter, any provision of any Act of Congress relating to colleges and universities eligible to receive funds under the Act of August 30, 1890 [7 U.S.C. 321 et seq.], including Tuskegee University, shall apply to West Virginia State College at Institute, West Virginia: Provided, That the Secretary may waive the matching funds' requirement under section 1449 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3222d) for fiscal year 2002 for West Virginia State College if the Secretary determines the State of West Virginia will be unlikely to satisfy the matching requirement."
§322. Annual appropriation
There is annually appropriated, out of any money in the Treasury not otherwise appropriated, to be paid as provided in section 324 of this title, to each State and Territory for the more complete endowment and maintenance of colleges for the benefit of agriculture and the mechanic arts established in accordance with the provisions of subchapter I of this chapter, $50,000 to be applied only to instruction in food and agricultural sciences, and to the facilities for such instruction: Provided, That said colleges may use a portion of this money for providing courses for the special preparation of instructors for teaching the elements of food and agricultural sciences.
(Aug. 30, 1890, ch. 841, §1, 26 Stat. 417; Mar. 4, 1907, ch. 2907, 34 Stat. 1281, 1282; Pub. L. 97–98, title XIV, §1421, Dec. 22, 1981, 95 Stat. 1306.)
Editorial Notes
Codification
Section is based on a part of section 1 of act Aug. 30, 1890, and the tenth and eleventh pars. under the heading "Emergency Appropriations" of act Mar. 4, 1907. Remainder of section 1 of act Aug. 30, 1890, is classified to section 323 of this title.
Amendments
1981—Pub. L. 97–98 substituted "food and agricultural sciences" for "agriculture, the mechanic arts, the English language, and the various branches of mathematical, physical, natural, and economic science, with special reference to their applications in the industries of life" and "the elements of food and agricultural sciences" for "the elements of agriculture and the mechanic arts".
1907—Act Mar. 4, 1907, substituted "$50,000" for "$25,000", and inserted proviso.
Statutory Notes and Related Subsidiaries
Effective Date of 1981 Amendment
Amendment by Pub. L. 97–98 effective Dec. 22, 1981, see section 1801 of Pub. L. 97–98, set out as an Effective Date note under section 4301 of this title.
Transfer of Functions
For transfer of functions under this section to Secretary of Agriculture, see note set out under section 321 of this title.
Availability of Funds for Payments Under This Subchapter
Pub. L. 103–330, title VII, §724, Sept. 30, 1994, 108 Stat. 2469, provided that: "No funds shall be available in fiscal year 1995 and thereafter for payments under the Act of August 30, 1890 and the tenth and eleventh paragraphs under the heading 'Emergency Appropriations' of the Act of March 4, 1907 (7 U.S.C. 321 et seq.)."
§323. Racial discrimination by colleges restricted
No money shall be paid out under this subchapter to any State or Territory for the support or maintenance of a college where a distinction of race or color is made in the admission of students, but the establishment and maintenance of such colleges separately for white and colored students shall be held to be a compliance with the provisions of said sections if the funds received in such State or Territory be equitably divided as hereinafter set forth: Provided, That in any State in which there has been one college established in pursuance of subchapter I of this chapter, and also in which an educational institution of like character has been established, or may be hereafter established, and is on August 30, 1890, aided by such State from its own revenue, for the education of colored students in agriculture and the mechanic arts, however named or styled, or whether or not it has received money prior to August 30, 1890, under said subchapter I, the legislature of such State may propose and report to the Secretary of Agriculture a just and equitable division of the fund to be received under this subchapter between one college for white students and one institution for colored students established as aforesaid, which shall be divided into two parts and paid accordingly, and thereupon such institution for colored students shall be entitled to the benefits of said sections and subject to their provisions, as much as it would have been if it had been included under subchapter I of this chapter, and the fulfillment of the foregoing provisions shall be taken as a compliance with the provision in reference to separate colleges for white and colored students.
(Aug. 30, 1890, ch. 841, §1, 26 Stat. 417; 1939 Reorg. Plan No. 1, §§201, 204, eff. July 1, 1939, 4 F.R. 2728, 53 Stat. 1424; 1953 Reorg. Plan No. 1, §§5, 8, eff. Apr. 11, 1953, 18 F.R. 2053, 67 Stat. 631; Pub. L. 96–88, title III, §301(a)(2)(E), Oct. 17, 1979, 93 Stat. 677; Pub. L. 97–98, title XIV, §1419, Dec. 22, 1981, 95 Stat. 1306.)
Editorial Notes
Codification
Section constitutes part of section 1 of act Aug. 30, 1890. Remainder of section 1 is classified to section 322 of this title.
Statutory Notes and Related Subsidiaries
Transfer of Functions
For transfer of functions under this section to Secretary of Agriculture, see note set out under section 321 of this title.
§324. Time, manner, etc., of annual payments
The sums appropriated by this subchapter to the States and Territories for the further endowment and support of colleges shall be annually paid on or before the 31st day of October of each year, by the Secretary of the Treasury, upon the warrant of the Secretary of Agriculture, out of the Treasury of the United States, to the State or Territorial treasurer, or to such officer as shall be designated by the laws of such State or Territory to receive the same, who shall, upon the order of the trustees of the college, or the institution for colored students, immediately pay over said sums to the treasurers of the respective colleges or other institutions entitled to receive the same, and such treasurers shall be required to report to the Secretary of Agriculture, on or before the 1st day of December of each year, a detailed statement of the amount so received and of its disbursement. The grants of moneys authorized by this subchapter are made subject to the legislative assent of the several States and Territories to the purpose of said grants.
(Aug. 30, 1890, ch. 841, §2, 26 Stat. 418; 1939 Reorg. Plan No. I, §§201, 204, eff. July 1, 1939, 4 F.R. 2728, 53 Stat. 1424; 1953 Reorg. Plan No. 1, §§5, 8, eff. Apr. 11, 1953, 18 F.R. 2053, 67 Stat. 631; Pub. L. 94–273, §9(1), Apr. 21, 1976, 90 Stat. 378; Pub. L. 96–88, title III, §301(a)(2)(E), Oct. 17, 1979, 93 Stat. 677; Pub. L. 97–98, title XIV, §1419, Dec. 22, 1981, 95 Stat. 1306.)
Editorial Notes
Amendments
1976—Pub. L. 94–273 substituted "October" for "July" and "December" for "September".
Statutory Notes and Related Subsidiaries
Transfer of Functions
For transfer of functions under this section to Secretary of Agriculture, see note set out under section 321 of this title.
Functions of Department of Health, Education, and Welfare and Secretary thereof under this subchapter transferred to Secretary of Education by section 301(a)(2)(E) of Pub. L. 96–88, which is classified to section 3441(a)(2)(E) of Title 20, Education.
Transfer of functions from Secretary of the Interior to Secretary of Health, Education, and Welfare, see note set out under section 321 of this title.
§325. State to replace funds misapplied, etc.; restrictions on use of funds; reports by colleges
If any portion of the moneys received by the designated officer of the State or Territory for the further and more complete endowment, support, and maintenance of colleges, or of institutions for colored students, as provided in this subchapter, shall, by any action or contingency, be diminished or lost, or be misapplied, it shall be replaced by the State or Territory to which it belongs, and until so replaced no subsequent appropriation shall be apportioned or paid to such State or Territory; and no portion of said moneys shall be applied, directly or indirectly, under any pretense whatever, to the purchase, erection, preservation, or repair of any building or buildings. An annual report by the president of each of said colleges shall be made to the Secretary of Agriculture, regarding the condition and progress of each college, including statistical information in relation to its receipts and expenditures, its library, the number of its students and professors, and also as to any improvements and experiments made under the direction of any experiment stations attached to said colleges, with their cost and results, and such other industrial and economical statistics as may be regarded as useful, one copy of which shall be transmitted by mail free to all other colleges further endowed under this subchapter.
(Aug. 30, 1890, ch. 841, §3, 26 Stat. 418; 1939 Reorg. Plan No. I, §§201, 204, eff. July 1, 1939, 4 F.R. 2728, 53 Stat. 1424; 1953 Reorg. Plan No. 1, §§5, 8, eff. Apr. 11, 1953, 18 F.R. 2053, 67 Stat. 631; Pub. L. 96–88, title III, §301(a)(2)(E), Oct. 17, 1979, 93 Stat. 677; Pub. L. 97–98, title XIV, §1419, Dec. 22, 1981, 95 Stat. 1306.)
Statutory Notes and Related Subsidiaries
Transfer of Functions
For transfer of functions under this section to Secretary of Agriculture, see note set out under section 321 of this title.
Functions of Department of Health, Education, and Welfare and Secretary thereof under this subchapter transferred to Secretary of Education by section 301(a)(2)(E) of Pub. L. 96–88, which is classified to section 3441(a)(2)(E) of Title 20, Education.
Transfer of functions from Secretary of the Interior to Secretary of Health, Education, and Welfare, see note set out under section 321 of this title.
§326. Ascertainment and certification of amounts due States; certificates withheld from States; appeal to Congress
On or before the 1st day of October in each year, the Secretary of Agriculture shall ascertain and certify to the Secretary of the Treasury as to each State and Territory whether it is entitled to receive its share of the annual appropriation for colleges, or of institutions for colored students, under this subchapter, and the amount which thereupon each is entitled, respectively, to receive. If the Secretary of Agriculture shall withhold a certificate from any State or Territory of its appropriation the facts and reasons therefor shall be reported to the President, and the amount involved shall be kept separate in the Treasury until the close of the next Congress, in order that the State or Territory may, if it should so desire, appeal to Congress from the determination of the Secretary of Agriculture. If the next Congress shall not direct such sum to be paid it shall be covered into the Treasury.
(Aug. 30, 1890, ch. 841, §4, 26 Stat. 419; 1939 Reorg. Plan No. I, §§201, 204, eff. July 1, 1939, 4 F.R. 2728, 53 Stat. 1424; 1953 Reorg. Plan No. 1, §§5, 8, eff. Apr. 11, 1953, 18 F.R. 2053, 67 Stat. 631; Pub. L. 94–273, §3(1), Apr. 21, 1976, 90 Stat. 376; Pub. L. 96–88, title III, §301(a)(2)(E), Oct. 17, 1979, 93 Stat. 677; Pub. L. 97–97, title XIV, §1419, Dec. 22, 1981, 95 Stat. 1306.)
Editorial Notes
Codification
Section constitutes part of section 4 of act Aug. 30, 1890. Remainder of section 4 is classified to section 321 of this title.
Amendments
1976—Pub. L. 94–273 substituted "October" for "July".
Statutory Notes and Related Subsidiaries
Transfer of Functions
For transfer of functions under this section to Secretary of Agriculture, see note set out under section 321 of this title.
Functions of Department of Health, Education, and Welfare and Secretary thereof under this subchapter transferred to Secretary of Education by section 301(a)(2)(E) of Pub. L. 96–88, which is classified to section 3441(a)(2)(E) of Title 20, Education.
Transfer of functions from Secretary of the Interior to Secretary of Health, Education, and Welfare, see note set out under section 321 of this title.
§326a. Annual appropriations for Puerto Rico, Virgin Islands, American Samoa, Guam, Northern Mariana Islands, Federated States of Micronesia, Republic of the Marshall Islands, and Republic of Palau
There is appropriated annually, out of funds in the Treasury not otherwise appropriated, for payment to the Commonwealth of Puerto Rico, the Virgin Islands of the United States, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau the amount they would be entitled to receive under this subchapter if they were States. Sums appropriated under this section shall be treated in the same manner and be subject to the same provisions of law, as would be the case if they had been appropriated by the first sentence of section 322 of this title.
(Aug. 30, 1890, ch. 841, §5, as added Pub. L. 92–318, title V, §506(c), June 23, 1972, 86 Stat. 350; amended Pub. L. 96–374, title XIII, §1361(b), Oct. 3, 1980, 94 Stat. 1502; Pub. L. 99–396, §9(b), Aug. 27, 1986, 100 Stat. 840; Pub. L. 100–339, §2, June 17, 1988, 102 Stat. 620; Pub. L. 103–382, title III, §352, Oct. 20, 1994, 108 Stat. 3966.)
Editorial Notes
Codification
"Appropriated by section 322 of this title" substituted in text for "appropriated by the first sentence of section 1". The first sentence of section 1 of act Aug. 30, 1890, is classified to sections 322 and 323 of this title, but section 322 only contains the appropriation provision.
Amendments
1994—Pub. L. 103–382 substituted "the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau" for "and the Trust Territory of the Pacific Islands or its successor governments".
1988—Pub. L. 100–339 amended section generally. Prior to amendment, section read as follows: "There is authorized to be appropriated annually for payment to the Virgin Islands, American Samoa, Guam, the Northern Mariana Islands, and the Trust Territory of the Pacific Islands (other than the Northern Mariana Islands) the amount they would receive under this subchapter if they were States. Sums appropriated under this section shall be treated in the same manner and be subject to the same provisions of law, as would be the case if they had been appropriated by section 322 of this title."
1986—Pub. L. 99–396 substituted "Guam, the Northern Mariana Islands, and the Trust Territory of the Pacific Islands (other than the Northern Mariana Islands)" for "and Micronesia, and Guam".
1980—Pub. L. 96–374 inserted references to American Samoa and Micronesia.
Statutory Notes and Related Subsidiaries
Effective Date of 1988 Amendment
Pub. L. 100–339, §3, June 17, 1988, 102 Stat. 621, provided that: "This Act [amending this section] shall take effect on October 1, 1987."
Effective Date of 1980 Amendment
Amendment by Pub. L. 96–374 effective Oct. 1, 1980, see section 1393(a) of Pub. L. 96–374, set out as a note under section 1001 of Title 20, Education.
Effective Date
Pub. L. 92–318, title V, §506(n), June 23, 1972, 86 Stat. 352, provided that: "The amendments made by this section [enacting this section, amending sections 329, 331, 343, 349, 361a, 361c, and 1626 of this title and sections 582a–3 and 582a–7 of Title 16, and enacting provisions set out as notes under this section and section 301 of this title] shall be effective after June 30, 1970."
State Consent
Pub. L. 92–318, title V, §506(m), June 23, 1972, 86 Stat. 352, provided that: "With respect to the Virgin Islands and Guam, the enactment of this section [see Effective Date note above] shall be deemed to satisfy any requirement of State consent contained in laws or provisions of law referred to in this section."
§327. Repealed. May 29, 1928, ch. 901, §1(74), 45 Stat. 991
Section, act Aug. 30, 1890, ch. 841, §5, 26 Stat. 419, related to reports by Secretary of the Interior of disbursements and certificates withheld.
§328. Power to amend, repeal, etc., reserved
Congress may at any time amend, suspend, or repeal any or all of the provisions of this subchapter.
(Aug. 30, 1890, ch. 841, §6, 26 Stat. 419.)
§329. Additional appropriation for agricultural colleges
In order to provide for the more complete endowment and support of the colleges in the several States, Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands entitled to the benefits of the Act entitled "An Act donating public lands to the several States and Territories which may provide colleges for the benefit of agriculture and the mechanic arts," approved July 2, 1862, as amended and supplemented (7 U.S.C. 301–328), there are authorized to be appropriated annually, out of any money in the Treasury not otherwise appropriated, the following amounts:
(a) For the first fiscal year beginning after the date of enactment of this Act, and for each fiscal year thereafter, $8,250,000; and
(b) For the first fiscal year beginning after the date of enactment of this Act, and for each fiscal year thereafter, $4,380,000.
The sums appropriated in pursuance of paragraph (a) shall be paid annually to the several States, Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands in equal shares. The sums appropriated in pursuance of paragraph (b) shall be in addition to sums appropriated in pursuance of paragraph (a) and shall be allotted and paid annually to each of the several States, Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands in the proportion to which the total population of each State, Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands bears to the total population of all the States, Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands as determined by the last preceding decennial census. Sums appropriated in pursuance of this section shall be in addition to sums appropriated or authorized under such Act of July 2, 1862, as amended and supplemented, and shall be applied only for the purposes of the colleges defined in such Act, as amended and supplemented. The provisions of law applicable to the use and payment of sums under the Act entitled "An Act to apply a portion of the proceeds of the public lands to the more complete endowment and support of the colleges for the benefit of agriculture and the mechanic arts established under the provisions of an Act of Congress approved July 2, 1862," approved August 30, 1890, as amended and supplemented, shall apply to the use and payment of sums appropriated in pursuance of this section.
(June 29, 1935, ch. 338, title II, §22, 49 Stat. 439; June 12, 1952, ch. 419, §§1–4, 66 Stat. 135, 136; Pub. L. 86–658, July 14, 1960, 74 Stat. 525; Pub. L. 89–791, title I, §108(a), Nov. 7, 1966, as added Pub. L. 90–354, §1, June 20, 1968, 82 Stat. 241; Pub. L. 92–318, title V, §506(d), June 23, 1972, 86 Stat. 350; Pub. L. 99–396, §9(d), Aug. 27, 1986, 100 Stat. 840.)
Editorial Notes
References in Text
Act of July 2, 1862, as amended and supplemented (7 U.S.C. 301–328), referred to in text, probably means act July 2, 1862, ch. 130, 12 Stat. 503, popularly known as the Morrill Act and also as the First Morrill Act, which is classified generally to subchapter I (§301 et seq.) of this chapter, along with the Act of August 30, 1890, see below. For complete classification of act July 2, 1862, to the Code, see Short Title note set out under section 301 of this title and Tables.
The words "date of enactment of this Act" appear in par. (a) of section 22 of act June 29, 1935, which was approved on June 29, 1935, and also in pars. (a) and (b) of section 22 of act June 29, 1935, as amended by Pub. L. 86–658, which was approved on July 14, 1960.
Act of August 30, 1890, as amended and supplemented, referred to in text, is act Aug. 30, 1890, ch. 841, 26 Stat. 417, popularly known as the Agricultural College Act of 1890 and also as the Second Morrill Act, which is classified generally to this subchapter. For complete classification of this Act to the Code, see Short Title note set out under section 321 of this title and Tables.
Codification
Section was not enacted as part of the act Aug. 30, 1890, which comprises this subchapter.
Section was formerly classified to section 343d of this title.
Amendments
1986—Pub. L. 99–396 substituted "Guam, and the Northern Mariana Islands" for "and Guam" in five places, "$8,250,000" for "$8,100,000", and "$4,380,000" for "$4,360,000".
1972—Pub. L. 92–318 inserted references to Virgin Islands and Guam, and substituted "$8,100,000" and "$4,360,000" for "$7,800,000" and "$4,320,000", respectively.
1968—Pub. L. 89–791, as added by Pub. L. 90–354, increased authorization for annual appropriations for Federal grants to States for support of resident teaching in land-grant colleges and universities from an authorization of $7,650,000 to $7,800,000, allocated equally among the States, and from an authorization of $4,300,000, allotted on basis of relative State population, to $4,320,000.
1960—Pub. L. 86–658 increased authorization for annual appropriations for Federal grants to States for support of resident teaching in land-grant colleges and universities from an authorization of $1,000,000, allocated equally among the States, to $7,650,000, and from an authorization of $1,501,500, allotted on basis of relative State population, to $4,300,000, struck out references to Territories of Alaska and Hawaii as now included in term "States" and included Puerto Rico in provisions of section.
1952—Opening par. Act June 12, 1952, §1, made section applicable to Alaska.
Par. (a). Act June 12, 1952, §2, increased allotment from $980,000 to $1,000,000.
Par. (b). Act June 12, 1952, §§3, 4, increased additional allotment of $1,500,000 to $1,501,500, and made said par. applicable to Alaska.
Statutory Notes and Related Subsidiaries
Effective Date of 1972 Amendment
Amendment by Pub. L. 92–318 effective after June 30, 1970, see section 506(n) of Pub. L. 92–318, set out as an Effective Date note under section 326a of this title.
Effective Date of 1952 Amendment
Act June 12, 1952, ch. 419, §5, 66 Stat. 136, provided that: "The amendments made by this Act [amending this section] shall take effect on the first day of the first fiscal year beginning on or after the date of enactment of this Act [June 12, 1952]."
SUBCHAPTER III—RETIREMENT OF EMPLOYEES
§331. Retirement of land-grant college employees
Pursuant to the recognized obligations of governments to guarantee the social security of their employees and in order to provide for the retirement on an annuity, or otherwise, of all persons being paid salaries in whole or in part from grants of Federal funds to the several States, Puerto Rico, the Virgin Islands, and Guam pursuant to the terms of the Act approved July 2, 1862, for the endowment and support of colleges of agriculture and mechanic arts [7 U.S.C. 301 et seq.], and Acts supplementary thereto providing for instruction in agriculture and mechanic arts, for the establishment of agricultural experiment stations, and for cooperative extension work in agriculture and home economics, all States, Puerto Rico, the Virgin Islands, and Guam are after March 4, 1940, authorized, notwithstanding any contrary provisions in said Acts, to withhold from expenditure, from Federal funds advanced under the terms of said Acts, amounts designated as employer contributions to be made by the States, Puerto Rico, the Virgin Islands, or Guam to retirement systems established in accordance with the laws of such States, Puerto Rico, the Virgin Islands, or Guam, or established by the governing boards of colleges of agriculture and mechanic arts in accordance with the authority vested in them, and to deposit such amounts to the credit of such retirement systems for subsequent disbursement in accordance with the terms of the retirement systems in effect in the respective States, Puerto Rico, the Virgin Islands, and Guam: Provided, That there shall not be deducted from Federal funds and deposited to the credit of retirement accounts as employer contributions, amounts in excess of 5 per centum of that portion of the salaries of employees paid from such Federal funds: Provided further, That, for the purpose of making deposits and contributions in retirement systems in favor of any employee, in no event shall the deductions from any Federal fund advanced pursuant to the foregoing Acts be in greater proportion to the total deductions for such employee than the salary received under such Federal funds bears to the total salary from Federal sources: Provided further, That the deposits and contributions from funds of Federal origin to any retirement system established by a State, Puerto Rico, the Virgin Islands, or Guam or a land-grant college must be at least equaled by the total contributions thereto on the part of the individuals concerned, the State, Puerto Rico, the Virgin Islands, or Guam, and the counties: And provided further, That no deductions for the foregoing purposes shall be made from Federal funds in support of employees appointed pursuant to the terms of the foregoing Acts, whose salaries are paid wholly by the States, Puerto Rico, the Virgin Islands, or Guam: Provided further, That the provisions of this section shall not apply to any employee paid in whole or in part from Federal funds who may be subject to subchapter III of chapter 83 of title 5.
(Mar. 4, 1940, ch. 38, 54 Stat. 39; Pub. L. 92–318, title V, §506(e), June 23, 1972, 86 Stat. 351.)
Editorial Notes
References in Text
The Act approved July 2, 1862, referred to in text, is act July 2, 1862, ch. 130, 12 Stat. 503, as amended, known as the "Morrill Act" and also known as the "First Morrill Act", which is classified generally to subchapter I (§301 et seq.) of this chapter. "Acts supplementary thereto" include act Aug. 30, 1890, ch. 841, 26 Stat. 417, popularly known as the Agricultural College Act of 1890, and also known as the Second Morrill Act, which is classified generally to subchapter II (§321 et seq.) of this chapter. For complete classification of these Acts to the Code, see Short Title notes set out under sections 301 and 321 of this title and Tables.
Codification
"Subchapter III of chapter 83 of title 5" substituted in text for "United States Civil Service Retirement Act, as amended" on authority of Pub. L. 89–544, §7(b), Sept. 6, 1966, 80 Stat. 631, 632, the first section of which enacted Title 5, Government Organization and Employees.
Amendments
1972—Pub. L. 92–318 substituted ", Puerto Rico, the Virgin Islands, and Guam" and ", Puerto Rico, the Virgin Islands, or Guam" for "and Territories" and "or Territories", respectively, wherever appearing and inserted in third proviso reference to Puerto Rico, Virgin Islands, and Guam.
Statutory Notes and Related Subsidiaries
Effective Date of 1972 Amendment
Amendment by Pub. L. 92–318 effective after June 30, 1970, see section 506(n) of Pub. L. 92–318, set out as an Effective Date note under section 326a of this title.
SUBCHAPTER IV—AGRICULTURAL EXTENSION WORK APPROPRIATION
§341. Cooperative extension work by colleges
In order to aid in diffusing among the people of the United States useful and practical information on subjects relating to agriculture, uses of solar energy with respect to agriculture, home economics, and rural energy, and to encourage the application of the same, there may be continued or inaugurated in connection with the college or colleges in each State, Territory, or possession, now receiving, or which may hereafter receive, the benefits of subchapters I and II of this chapter, agricultural extension work which shall be carried on in cooperation with the United States Department of Agriculture: Provided, That in any State, Territory, or possession in which two or more such colleges have been or hereafter may be established, the appropriations hereinafter made to such State, Territory, or possession shall be administered by such college or colleges as the legislature of such State, Territory, or possession may direct. For the purposes of this subchapter, the term "solar energy" means energy derived from sources (other than fossil fuels) and technologies included in the Federal Non-Nuclear 1 Energy Research and Development Act of 1974, as amended [42 U.S.C. 5901 et seq.].
(May 8, 1914, ch. 79, §1, 38 Stat. 372; June 26, 1953, ch. 157, §1, 67 Stat. 83; Pub. L. 95–113, title XIV, §1447(1), (2), Sept. 29, 1977, 91 Stat. 1011; Pub. L. 96–294, title II, §256(1), June 30, 1980, 94 Stat. 708.)
Editorial Notes
References in Text
The Federal Nonnuclear Energy Research and Development Act of 1974, as amended, referred to in text, is Pub. L. 93–577, Dec. 31, 1974, 88 Stat. 1878, which is classified generally to chapter 74 (§5901 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 5901 of Title 42 and Tables.
Codification
Another section 1447 of Pub. L. 95–113 is classified to section 3222b of this title.
Amendments
1980—Pub. L. 96–294 inserted reference to rural energy.
1977—Pub. L. 95–113 inserted reference to the uses of solar energy with respect to agriculture and inserted definition of "solar energy".
1953—Act June 26, 1953, inserted "continued or" before "inaugurated" near beginning of section, inserted references to "territory, or possession" after "State," wherever the latter term appeared, and struck out a second proviso which continued farm management work and farmers' cooperative demonstration work as conducted May 8, 1914, pending inauguration and development of cooperative extension work under sections 341–343 and 344–348 of this title.
Statutory Notes and Related Subsidiaries
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Short Title
Act May 8, 1914, ch. 79, §11, as added by Pub. L. 105–185, §3(a), June 23, 1998, 112 Stat. 525, provided that: "This Act [enacting this subchapter] may be cited as the 'Smith-Lever Act'."
Act May 8, 1914, as amended, is also popularly known as the "Agricultural Extension Work Act".
Executive Documents
Transfer of Functions
Functions of all officers, agencies, and employees of Department of Agriculture transferred, with certain exceptions, to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
1 So in original. Probably should be "Nonnuclear".
§342. Cooperative agricultural extension work; cooperation with Secretary of Agriculture
Cooperative agricultural extension work shall consist of the development of practical applications of research knowledge and giving of instruction and practical demonstrations of existing or improved practices or technologies in agriculture, uses of solar energy with respect to agriculture, home economics, and rural energy and subjects relating thereto to persons not attending or resident in said colleges in the several communities, and imparting information on said subjects through demonstrations, publications, and otherwise and for the necessary printing and distribution of information in connection with the foregoing; and this work shall be carried on in such manner as may be mutually agreed upon by the Secretary of Agriculture and the State agricultural college or colleges or Territory or possession receiving the benefits of this subchapter.
(May 8, 1914, ch. 79, §2, 38 Stat. 373; June 26, 1953, ch. 157, §1, 67 Stat. 84; Pub. L. 87–749, §1(a), Oct. 5, 1962, 76 Stat. 745; Pub. L. 95–113, title XIV, §1447(3), Sept. 29, 1977, 91 Stat. 1011; Pub. L. 96–294, title II, §256(2), June 30, 1980, 94 Stat. 708; Pub. L. 99–198, title XIV, §1435(a), Dec. 23, 1985, 99 Stat. 1557.)
Editorial Notes
Codification
Another section 1447 of Pub. L. 95–113 is classified to section 3222b of this title.
Amendments
1985—Pub. L. 99–198 substituted "shall consist of the development of practical applications of research knowledge and giving of instruction and practical demonstrations of existing or improved practices or technologies" for "shall consist of the giving of instructions and practical demonstrations".
1980—Pub. L. 96–294 inserted reference to rural energy.
1977—Pub. L. 95–113 inserted reference to uses of solar energy with respect to agriculture.
1962—Pub. L. 87–749 inserted "or Territory or possession" after "college or colleges".
1953—Act June 26, 1953, inserted "and subjects relating thereto" after "agriculture and home economics" near beginning of section, and inserted reference to necessary printing and distribution of information.
Statutory Notes and Related Subsidiaries
Effective Date of 1985 Amendment
Amendment by Pub. L. 99–198 effective Oct. 1, 1985, see section 1435(d) of Pub. L. 99–198, set out as a note under section 343 of this title.
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
§343. Appropriations; distribution; allotment and apportionment; Secretary of Agriculture; matching funds; cooperative extension activities
(a) There are authorized to be appropriated for the purposes of this subchapter such sums as Congress may from time to time determine to be necessary.
(b)(1) Out of such sums, each State and the Secretary of Agriculture shall be entitled to receive annually a sum of money equal to the sums available from Federal cooperative extension funds for the fiscal year 1962, and subject to the same requirements as to furnishing of equivalent sums by the State, except that amounts heretofore made available to the Secretary for allotment on the basis of special needs shall continue available for use on the same basis.
(2) There is authorized to be appropriated for the fiscal year ending June 30, 1971, and for each fiscal year thereafter, for payment to the Virgin Islands, Guam, and the Northern Mariana Islands, $100,000 each, which sums shall be in addition to the sums appropriated for the several States of the United States and Puerto Rico under the provisions of this section. The amount paid by the Federal Government to the Virgin Islands and Guam pursuant to this paragraph shall not exceed during any fiscal year, except the fiscal years ending June 30, 1971, and June 30, 1972, when such amount may be used to pay the total cost of providing services pursuant to this subchapter, the amount available and budgeted for expenditure by the Virgin Islands and Guam for the purposes of this subchapter.
(3) There are authorized to be appropriated for the fiscal year ending June 30, 1996, and for each fiscal year thereafter, for payment on behalf of the 1994 Institutions (as defined in section 532 of the Equity in Educational Land-Grant Status Act of 1994), such sums as are necessary for the purposes set forth in section 342 of this title. The balance of any annual funds provided under the preceding sentence for a fiscal year that remains unexpended at the end of that fiscal year shall remain available without fiscal year limitation. Such sums shall be in addition to the sums appropriated for the several States and Puerto Rico, the Virgin Islands, and Guam under the provisions of this section. Such sums shall be distributed on the basis of a competitive application process to be developed and implemented by the Secretary and paid by the Secretary to 1994 Institutions (in accordance with regulations that the Secretary may promulgate) and may be administered by the 1994 Institutions through cooperative agreements with colleges and universities eligible to receive funds under subchapters I and II of this chapter, including Tuskegee University, located in any State.
(4)
(A)
(B)
(C)
(i) distributed on the basis of a competitive application process to be developed and implemented by the Secretary;
(ii) paid by the Secretary to the State institutions established in accordance with the Act of July 2, 1862 (commonly known as the "First Morrill Act") (7 U.S.C. 301 et seq.); and
(iii) administered by State institutions through cooperative agreements with the Hispanic-serving agricultural colleges and universities in the State in accordance with regulations promulgated by the Secretary.
(c) Any sums made available by the Congress for further development of cooperative extension work in addition to those referred to in subsection (b) of this section shall be distributed as follows:
(1) Four per centum of the sum so appropriated for each fiscal year shall be allotted to the Secretary of Agriculture for administrative, technical, and other services, and for coordinating the extension work of the Department and the several States, Territories, and possessions.
(2) Of the remainder so appropriated for each fiscal year 20 per centum shall be paid to the several States in equal proportions, 40 per centum shall be paid to the several States in the proportion that the rural population of each bears to the total rural population of the several States as determined by the census, and the balance shall be paid to the several States in the proportion that the farm population of each bears to the total farm population of the several States as determined by the census. Any appropriation made hereunder shall be allotted in the first and succeeding years on the basis of the decennial census current at the time such appropriation is first made, and as to any increase, on the basis of decennial census current at the time such increase is first appropriated.
(d) The Secretary of Agriculture shall receive such additional amounts as Congress shall determine for administration, technical, and other services and for coordinating the extension work of the Department and the several States, Territories, and possessions. A college or university eligible to receive funds under subchapter II of this chapter, including Tuskegee University, may compete for and receive funds directly from the Secretary of Agriculture. A 1994 Institution (as defined in section 532 of the Equity in Educational Land-Grant Status Act of 1994 (7 U.S.C. 301 note; Public Law 103–382)) may compete for and receive funds directly from the Secretary of Agriculture for the Children, Youth, and Families at Risk funding program and the Federally Recognized Tribes Extension Program.
(e)
(1)
(2)
(A) the amount that would be allotted and paid to the State under subsections (b) and (c) (if the full amount of matching funds were provided by the State); and
(B) the amount of matching funds actually provided by the State.
(3)
(A)
(B)
(4)
(A)
(B)
(f)
(g)(1) The Secretary of Agriculture may conduct educational, instructional, demonstration, and publication distribution programs and enter into cooperative agreements with private nonprofit and profit organizations and individuals to share the cost of such programs through contributions from private sources as provided in this subsection.
(2) The Secretary may receive contributions under this subsection from private sources for the purposes described in paragraph (1) and provide matching funds in an amount not greater than 50 percent of such contributions.
(h)
(1)
(2)
(A) 1997
(B)
(i) 25 percent; or
(ii) twice the percentage for the State determined under subparagraph (A).
(C)
(3)
(A) by a State or local government pursuant to a matching requirement;
(B) to a 1994 Institution (as defined in section 532 of the Equity in Educational Land-Grant Status Act of 1994 (Public Law 103–382; 7 U.S.C. 301 note)); or
(C) to the Commonwealth of Puerto Rico, the Virgin Islands, or Guam.
(i)
(1)
(2)
(j)
(May 8, 1914, ch. 79, §3, 38 Stat. 373; June 26, 1953, ch. 157, §1, 67 Stat. 84; Pub. L. 87–749, §1(b)–(e), Oct. 5, 1962, 76 Stat. 745; Pub. L. 92–318, title V, §506(g), June 23, 1972, 86 Stat. 351; Pub. L. 95–113, title XIV, §1465, Sept. 29, 1977, 91 Stat. 1018; Pub. L. 99–198, title XIV, §1435(b), Dec. 23, 1985, 99 Stat. 1557; Pub. L. 99–396, §9(e), Aug. 27, 1986, 100 Stat. 840; Pub. L. 103–382, title V, §534(b), Oct. 20, 1994, 108 Stat. 4050; Pub. L. 104–127, title VIII, §883(a), Apr. 4, 1996, 110 Stat. 1176; Pub. L. 105–185, title I, §105, title II, §§201, 203(b), (c)(2), 204(b), June 23, 1998, 112 Stat. 529, 531, 534, 536; Pub. L. 105–277, div. A, §101(a) [title VII, §753(e)], Oct. 21, 1998, 112 Stat. 2681, 2681-33; Pub. L. 107–171, title VII, §§7213(b), 7215, May 13, 2002, 116 Stat. 448; Pub. L. 110–234, title VII, §§7129(b), 7403(a), May 22, 2008, 122 Stat. 1226, 1246; Pub. L. 110–246, §4(a), title VII, §§7129(b), 7403(a), June 18, 2008, 122 Stat. 1664, 1987, 2007; Pub. L. 115–334, title VII, §§7609(a), 7612(a)(1), Dec. 20, 2018, 132 Stat. 4830, 4831.)
Editorial Notes
References in Text
Section 532 of the Equity in Educational Land-Grant Status Act of 1994, referred to in subsec. (b)(3), is section 532 of Pub. L. 103–382, which is set out as a note under section 301 of this title.
The Act of July 2, 1862, referred to in subsec. (b)(4)(C)(ii), is act July 2, 1862, ch. 130, 12 Stat. 503, popularly known as the "Morrill Act" and also as the "First Morrill Act", which is classified generally to subchapter I (§301 et seq.) of chapter 13 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 301 of this title and Tables.
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2018—Subsec. (d). Pub. L. 115–334, §7609(a), inserted at end "A 1994 Institution (as defined in section 532 of the Equity in Educational Land-Grant Status Act of 1994 (7 U.S.C. 301 note; Public Law 103–382)) may compete for and receive funds directly from the Secretary of Agriculture for the Children, Youth, and Families at Risk funding program and the Federally Recognized Tribes Extension Program."
Subsec. (h)(2)(D). Pub. L. 115–334, §7612(a)(1), struck out subpar. (D). Prior to amendment, text read as follows: "The State shall include in the plan of work of the State required under section 344 of this title a description of the manner in which the State will meet the requirements of this paragraph."
2008—Subsec. (b)(4). Pub. L. 110–246, §7129(b)(1), added par. (4).
Subsec. (d). Pub. L. 110–246, §7403(a), substituted "compete for and receive funds directly from the Secretary of Agriculture." for "apply for and receive directly from the Secretary of Agriculture—
"(1) amounts made available under this subsection after September 30, 1995, to carry out programs or initiatives for which no funds were made available under this subsection for fiscal year 1995, or any previous fiscal year, as determined by the Secretary; and
"(2) amounts made available after September 30, 1995, to carry out programs or initiatives funded under this subsection prior to that date that are in excess of the highest amount made available for the programs or initiatives under this subsection for fiscal year 1995, or any previous fiscal year, as determined by the Secretary."
Subsec. (f). Pub. L. 110–246, §7129(b)(2), in heading, inserted "and Hispanic-Serving Agricultural Colleges and Universities" after "1994
2002—Subsec. (b)(3). Pub. L. 107–171, §7215, substituted "such sums as are necessary" for "$5,000,000" and inserted "The balance of any annual funds provided under the preceding sentence for a fiscal year that remains unexpended at the end of that fiscal year shall remain available without fiscal year limitation." after "section 342 of this title.".
Subsec. (e)(4). Pub. L. 107–171, §7213(b), added par. (4) and struck out heading and text of former par. (4). Text read as follows: "In lieu of the matching funds requirement of paragraph (1), the Commonwealth of Puerto Rico, the Virgin Islands, and Guam shall be subject to the same matching funds requirements as those applicable to an eligible institution under section 3222d of this title."
1998—Subsec. (b)(1). Pub. L. 105–185, §203(c)(2)(A), substituted "Secretary of Agriculture" for "Federal Extension Service".
Subsec. (b)(3). Pub. L. 105–185, §201, substituted "1994 Institutions (in accordance with regulations that the Secretary may promulgate) and may be administered by the 1994 Institutions through cooperative agreements with colleges and universities eligible to receive funds under subchapters I and II of this chapter, including Tuskegee University, located in any State." for "State institutions established in accordance with the provisions of subchapter I of this chapter (other than 1994 Institutions) and administered by such institutions through cooperative agreements with 1994 Institutions in the States of the 1994 Institutions in accordance with regulations that the Secretary shall adopt."
Subsec. (c)(1). Pub. L. 105–185, §203(b)(1)(A), (c)(2)(A), redesignated par. 1 as (1) and substituted "Secretary of Agriculture" for "Federal Extension Service".
Subsec. (c)(2). Pub. L. 105–185, §203(b)(1), redesignated par. 2 as (2) and substituted "census. Any" for "census: Provided, That payments out of the additional appropriations for further development of extension work authorized herein may be made subject to the making available of such sums of public funds by the States from non-Federal funds for the maintenance of cooperative agricultural extension work provided for in this subchapter, as may be provided by the Congress at the time such additional appropriations are made: Provided further, That any".
Subsec. (d). Pub. L. 105–185, §203(c)(2)(A), substituted "Secretary of Agriculture" for "Federal Extension Service".
Subsec. (e). Pub. L. 105–185, §203(b)(2), added subsec. (e) and struck out former subsec. (e) which read as follows: "Insofar as the provisions of subsections (b) and (c) of this section, which require or permit Congress to require matching of Federal funds, apply to the Virgin Islands of the United States and Guam, such provisions shall be deemed to have been satisfied, for the fiscal years ending September 30, 1978, and September 30, 1979, only, if the amounts budgeted and available for expenditure by the Virgin Islands of the United States and Guam in such years equal the amounts budgeted and available for expenditure by the Virgin Islands of the United States and Guam in the fiscal year ending September 30, 1977."
Subsec. (e)(1). Pub. L. 105–277, §101(a) [title VII, §753(e)(1)], inserted "paragraph (4) and" after "provided in".
Subsec. (e)(4). Pub. L. 105–277, §101(a) [title VII, §753(e)(2)], added par. (4).
Subsec. (f). Pub. L. 105–185, §203(b)(2), added subsec. (f) and struck out former subsec. (f) which read as follows: "There shall be no matching requirement for funds made available pursuant to subsection (b)(3) of this section."
Subsec. (g)(1). Pub. L. 105–185, §203(c)(2)(B), struck out "through the Federal Extension Service" after "distribution programs".
Subsecs. (h), (i). Pub. L. 105–185, §105, added subsecs. (h) and (i).
Subsec. (j). Pub. L. 105–185, §204(b), added subsec. (j).
1996—Subsec. (d). Pub. L. 104–127 inserted at end "A college or university eligible to receive funds under subchapter II of this chapter, including Tuskegee University, may apply for and receive directly from the Secretary of Agriculture—" and added pars. (1) and (2).
1994—Subsec. (b)(3). Pub. L. 103–382, §534(b)(1), added par. (3).
Subsecs. (f), (g). Pub. L. 103–382, §534(2), (3), added subsec. (f) and redesignated former subsec. (f) as (g).
1986—Subsec. (b)(2). Pub. L. 99–396 substituted "Guam, and the Northern Mariana Islands" for "and Guam" in provision authorizing an appropriation each fiscal year for the payment of $100,000 in addition to the sums appropriated for the States and Puerto Rico.
1985—Subsec. (f). Pub. L. 99–198 added subsec. (f).
1977—Subsec. (e). Pub. L. 95–113 added subsec. (e).
1972—Subsec. (b). Pub. L. 92–318 designated existing provisions as par. (1) and added par. (2).
1962—Subsec. (b). Pub. L. 87–749, §1(b), substituted "sums available" for "sums received", and "1962" for "1953", and struck out ", Alaska, Hawaii, Puerto Rico," before "and the Federal Extension Service", "such sums shall be" before "subject to the same requirement", ", Alaska, Hawaii, and Puerto Rico as existed immediately prior to June 26, 1953" before "except that amounts heretofore", and proviso which authorized Puerto Rico to receive the total initial amount set by Act Oct. 26, 1949, which amount was to be increased yearly until the total sum equalled the maximum amount set by such Act, and to receive such amount annually thereafter.
Subsec. (c)1. Pub. L. 87–749, §1(c), provided that the allotment shall be to the Federal Extension Service for various services and for coordinating the extension work of the Department, States, Territories and Possessions, and struck out provisions which required the Secretary to allot the funds among the States, Alaska, Hawaii, and Puerto Rico according to special needs.
Subsec. (c)2. Pub. L. 87–749, §1(d), substituted provisions authorizing 20 per centum of the remainder of the appropriated funds to be paid to the States in equal proportions, 40 per centum of such funds to be paid to the States in the proportion that the rural population of each bears to the total rural population of the States, and the balance to be paid the States in the proportion that the farm population of each bears to the total farm population of the States, for provisions paying 50 per centum of the remaining sum to the States, Alaska, Hawaii and Puerto Rico in the proportion that the rural population of each had to the total rural population of all, and the balance in the proportion that the farm population of each had to the farm population of all, and struck out ", Alaska, Hawaii, and Puerto Rico" from first proviso.
Subsec. (d). Pub. L. 87–749, §1(e), inserted "additional" after "receive such".
1953—Act June 26, 1953, amended section generally, and, among other changes: (1) divided section into subsections; (2) substituted general authorization for appropriations for former authorization for specific annual appropriations; (3) inserted references to Alaska, Hawaii, and Puerto Rico; and (4) substituted provisions relating to allotment and apportionment of appropriations for former provisions for such apportionment on basis of rural population, and farm population, as determined by latest census.
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Effective Date of 1998 Amendment
Pub. L. 105–277, div. A, §101(a) [title VII, §753(f)], Oct. 21, 1998, 112 Stat. 2681, 2681-33, provided that: "The amendments made by this section [amending this section, sections 361c, 2204f, 4606, and 7621 of this title, and section 1642 of Title 16, Conservation] shall take effect on the date of enactment of the Agricultural Research, Extension, and Education Reform Act of 1998 [June 23, 1998]."
Effective Date of 1985 Amendment
Pub. L. 99–198, title XIV, §1435(d), Dec. 23, 1985, 99 Stat. 1558, provided that: "This section and the amendments made by this section [amending this section and section 342 of this title] shall become effective on October 1, 1985."
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date of 1972 Amendment
Amendment by Pub. L. 92–318 effective after June 30, 1970, see section 506(n) of Pub. L. 92–318, set out as an Effective Date note under section 326a of this title.
Review of Land-Grant Time and Effort Reporting Requirements
Pub. L. 115–334, title VII, §7613, Dec. 20, 2018, 132 Stat. 4832, provided that:
"(a)
"(b)
"(1) is developed in collaboration with entities described in subsection (a); and
"(2) reduces the amount of paperwork and time required by the requirements referred to in such subsection, as such requirements are in effect on the date of the enactment of this Act [Dec. 20, 2018]."
§§343a to 343c–1. Repealed. June 26, 1953, ch. 157, §2, 67 Stat. 85, 86
Section 343a, acts May 22, 1928, ch. 687, §1, 45 Stat. 711; Mar. 10, 1930, ch. 73, 46 Stat. 83, authorized additional annual appropriations of $980,000, and $500,000, further to develop cooperative agricultural extension work under sections 341 to 343, 344 to 346, and 347a to 349 of this title, provided for the disposition of such sums, and extended the system to Hawaii.
Section 343b, act May 22, 1928, ch. 687, §2, 45 Stat. 712, provided that the sums appropriated under said section 343a should be in addition to sums appropriated under section 343 of this title, or sums otherwise annually appropriated for cooperative agricultural extension work.
Section 343c, acts June 29, 1935, ch. 338, title II, §21, 49 Stat. 438; June 6, 1945, ch. 175, §2, 59 Stat. 233, authorized further additional appropriations on an ascending scale until they amounted to $12,000,000 annually, further to develop the cooperative agricultural system inaugurated under sections 341 to 343, 344 to 346, 347a to 349 of this title, and provided for their disposition.
Section 343c–1, acts Apr. 24, 1939, ch. 85, 53 Stat. 589; Sept. 21, 1944, ch. 412, title VII, §707, 58 Stat. 742, authorized additional appropriations of $555,000 annually, for the purpose of paying the expenses of cooperative extension work in agriculture and home economics, and provided for their disposition.
The provisions that were contained in all of the above repealed sections are covered generally by sections 341 to 343, 344 to 346, and 347a to 349 of this title.
§343d. Transferred
Editorial Notes
Codification
Section, act June 29, 1935, ch. 338, title II, §22, 49 Stat. 439, as amended, which related to additional appropriations for agricultural colleges, was transferred to section 329 of this title.
§§343d–1 to 343d–5. Repealed. June 26, 1953, ch. 157, §2, 67 Stat. 86
Section 343d–1, act June 29, 1935, ch. 338, title II, §23, as added June 6, 1945, ch. 175, §1, 59 Stat. 231, authorized further additional appropriations, commencing with the fiscal year ended June 30, 1946 and continuing on an ascending scale until they amounted to $12,500,000 for the fiscal year ended June 30, 1948 and each subsequent fiscal year, further to develop the cooperative agricultural extension system inaugurated under sections 341 to 343, 344 to 346, and 347a to 349 of this title, and provided for their disposition.
Sections 343d–2 and 343d–3, act Oct. 26, 1949, ch. 753, §§1, 2, 63 Stat. 926, extended the provisions of former section 343d–1 of this title to Puerto Rico and for such purposes, authorized additional appropriations on an ascending scale until they should amount to $401,090 annually.
Sections 343d–4 and 343d–5, act Oct. 27, 1949, ch. 768, §§1, 2, 63 Stat. 939, extended the provisions of former sections 343a, 343b, 343c and 343d–1 of this title to Alaska, and, for such purpose, authorized annual appropriations in amounts to be computed on the same basis as computations of appropriations to States, subject to annual estimates as to funds and amounts by the Secretary of Agriculture.
See, generally, sections 341 to 343, 344 to 346, and 347a to 349 of this title.
§343e. Repealed. Oct. 27, 1949, ch. 768, §3, 63 Stat. 940
Section, act June 20, 1936, ch. 631, §§1, 3, 49 Stat. 1553, 1554, related to extension of benefits of former sections 343a and 343b of this title to Alaska. See notes thereunder.
§§343f, 343g. Repealed. June 26, 1953, ch. 157, §2, 67 Stat. 86
Sections, act Aug. 28, 1937, ch. 878, §§1, 2, 50 Stat. 881, extended benefits of former section 343c of this title to Puerto Rico, and for such purpose, authorized appropriations, commencing with initial authorization of $88,000 for the fiscal year beginning after August 28, 1937, and on an ascending scale thereafter, until they amounted to $408,000 annually. See sections 341 to 343, 344 to 346, and 347a to 349 of this title.
§344. Ascertainment of entitlement of State to funds; time and manner of payment; State reporting requirements; plans of work
(a) Ascertainment of entitlement
On or about the first day of October in each year after June 26, 1953, the Secretary of Agriculture shall ascertain as to each State whether it is entitled to receive its share of the annual appropriation for cooperative agricultural extension work under this subchapter and the amount which it is entitled to receive. Before the funds herein provided shall become available to any college for any fiscal year, plans for the work to be carried on under this subchapter shall be submitted by the proper officials of each college and approved by the Secretary of Agriculture. The Secretary shall ensure that each college seeking to receive funds under this subchapter has in place appropriate guidelines, as determined by the Secretary, to minimize actual or potential conflicts of interest among employees of such college whose salaries are funded in whole or in part with such funds.
(b) Time and manner of payment; related reports
The amount to which a State is entitled shall be paid in equal quarterly payments in or about July, October, January, and April of each year to the treasurer or other officer of the State duly authorized by the laws of the State to receive the same, and such officer shall be required to report to the Secretary of Agriculture on or about the first day of April of each year, a detailed statement of the amount so received during the previous fiscal year and its disbursement, on forms prescribed by the Secretary of Agriculture.
(c) Requirements related to plan of work
Each extension plan of work for a State required under subsection (a) shall contain descriptions of the following:
(1) A summary of planned projects or programs in the State using formula funds.
(2) A description of the manner in which the State will meet the requirements of section 343(h) of this title.
(3) A description of the manner in which the State will meet the requirements of section 361c(i)(2) of this title.
(4) A description of matching funds provided by the State with respect to the previous fiscal year.
(d) Extension protocols
(1) Development
The Secretary of Agriculture shall develop protocols to be used to evaluate the success of multistate, multi-institutional, and multidisciplinary extension activities and joint research and extension activities in addressing critical agricultural issues identified in the plans of work submitted under subsection (a).
(2) Consultation
The Secretary of Agriculture shall develop the protocols in consultation with the National Agricultural Research, Extension, Education, and Economics Advisory Board established under section 3123 of this title and land-grant colleges and universities.
(e) Treatment of plans of work for other purposes
To the maximum extent practicable, the Secretary shall consider a plan of work submitted under subsection (a) to satisfy other appropriate Federal reporting requirements.
(May 8, 1914, ch. 79, §4, 38 Stat. 374; June 26, 1953, ch. 157, §1, 67 Stat. 85; Pub. L. 87–749, §1(f), Oct. 5, 1962, 76 Stat. 745; Pub. L. 94–273, §15, Apr. 21, 1976, 90 Stat. 379; Pub. L. 101–624, title XVI, §1617, Nov. 28, 1990, 104 Stat. 3732; Pub. L. 105–185, title II, §202(a), June 23, 1998, 112 Stat. 531; Pub. L. 115–334, title VII, §7612(a)(2), Dec. 20, 2018, 132 Stat. 4831.)
Editorial Notes
Amendments
2018—Subsec. (c). Pub. L. 115–334 added pars. (1) to (4) and struck out former pars. (1) to (5) which read as follows:
"(1) The critical short-term, intermediate, and long-term agricultural issues in the State and the current and planned extension programs and projects targeted to address the issues.
"(2) The process established to consult with extension users regarding the identification of critical agricultural issues in the State and the development of extension programs and projects targeted to address the issues.
"(3) The efforts made to identify and collaborate with other colleges and universities within the State, and within other States, that have a unique capacity to address the identified agricultural issues in the State and the extent of current and emerging efforts (including regional efforts) to work with those other institutions.
"(4) The manner in which research and extension, including research and extension activities funded other than through formula funds, will cooperate to address the critical issues in the State, including the activities to be carried out separately, the activities to be carried out sequentially, and the activities to be carried out jointly.
"(5) The education and outreach programs already underway to convey available research results that are pertinent to a critical agricultural issue, including efforts to encourage multicounty cooperation in the dissemination of research results."
1998—Pub. L. 105–185 inserted section catchline, designated existing provisions as subsecs. (a) and (b), inserted subsec. headings, in subsec. (b) substituted "The amount to which a State is entitled" for "Such sums", and added subsecs. (c) to (e).
1990—Pub. L. 101–624 inserted after second sentence "The Secretary shall ensure that each college seeking to receive funds under this subchapter has in place appropriate guidelines, as determined by the Secretary, to minimize actual or potential conflicts of interest among employees of such college whose salaries are funded in whole or in part with such funds."
1976—Pub. L. 94–273 substituted "of October" for "of July" and "of April" for "of January".
1962—Pub. L. 87–749 substituted "quarterly payments in or about July, October, January, and April" for "semiannual payments on the first day of January and July", and struck out ", Territory or possession" wherever appearing.
1953—Act June 26, 1953, among other changes, inserted first two sentences, inserted references to "Territory, or possession" after references to "State," in sentence commencing "Such sums", and in such sentence, struck out reference to payment by the Secretary of the Treasury upon warrant of the Secretary of Agriculture, and substituted "January" for "September" with respect to submission of annual detailed statements.
Statutory Notes and Related Subsidiaries
Effective Date of 1998 Amendment
Pub. L. 105–185, title II, §202(c), June 23, 1998, 112 Stat. 533, provided that: "The amendments made by this section [amending this section and section 361g of this title] take effect on October 1, 1999."
§345. Replacement of diminished, lost or misapplied funds; restrictions on use; reports of colleges
If any portion of the moneys received by the designated officer of any State for the support and maintenance of cooperative agricultural extension work, as provided in this subchapter, shall by any action or contingency be diminished or lost or be misapplied, it shall be replaced by said State and until so replaced no subsequent appropriation shall be apportioned or paid to said State. No portion of said moneys shall be applied, directly or indirectly, to the purchase, erection, preservation, or repair of any building or buildings, or the purchase or rental of land, or in college-course teaching, lectures in college, or any other purpose not specified in this subchapter.
(May 8, 1914, ch. 79, §5, 38 Stat. 374; June 26, 1953, ch. 157, §1, 67 Stat. 85; Pub. L. 87–749, §1(g), Oct. 5, 1962, 76 Stat. 745; Pub. L. 110–234, title VII, §7403(b), May 22, 2008, 122 Stat. 1246; Pub. L. 110–246, §4(a), title VII, §7403(b), June 18, 2008, 122 Stat. 1664, 2007.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2008—Pub. L. 110–246, §7403(b), struck out at end "It shall be the duty of said colleges, annually, on or about the first day of January, to make to the Governor of the State in which it is located a full and detailed report of its operations in extension work as defined in this subchapter, including a detailed statement of receipts and expenditures from all sources for this purpose, a copy of which report shall be sent to the Secretary of Agriculture."
1962—Pub. L. 87–749 struck out references to territories and possessions wherever appearing.
1953—Act June 26, 1953, among other changes, inserted "Territory, or possession" after "State," wherever latter term appeared, struck out provision that not more than five per centum of each annual appropriation should be applied to the printing and distribution of publications, and struck out the provision that copies of the required reports should be sent to the Secretary of the Treasury.
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
§346. Repealed. Pub. L. 105–185, title I, §103(f)(1), June 23, 1998, 112 Stat. 528
Section, acts May 8, 1914, ch. 79, §6, 38 Stat. 374; June 26, 1953, ch. 157, §1, 67 Stat. 85; Pub. L. 87–749, §1(g), Oct. 5, 1962, 76 Stat. 745, related to report of nonentitlement to President, retention of amount involved in Treasury, appeal from determination, and disposition of sum.
§347. Repealed. Pub. L. 86–533, §1(21), June 29, 1960, 74 Stat. 249
Section, acts May 8, 1914, ch. 79, §7, 38 Stat. 374; June 26, 1953, ch. 157, §1, 67 Stat. 85, required Secretary of Agriculture to report to Congress receipts, expenditures, and results of cooperative agriculture extension work in all States, Territories, or possessions receiving benefits of sections 341 to 343, 344 to 346, and 347a to 349 of this title.
§347a. Disadvantaged agricultural areas
(a) Congressional findings
The Congress finds that there exists special circumstances in certain agricultural areas which cause such areas to be at a disadvantage insofar as agricultural development is concerned, which circumstances include the following: (1) There is concentration of farm families on farms either too small or too unproductive or both; (2) such farm operators because of limited productivity are unable to make adjustments and investments required to establish profitable operations; (3) the productive capacity of the existing farm unit does not permit profitable employment of available labor; (4) because of limited resources, many of these farm families are not able to make full use of current extension programs designed for families operating economic units nor are extension facilities adequate to provide the assistance needed to produce desirable results.
(b) Appropriation
In order to further the purposes of section 342 of this title in such areas and to encourage complementary development essential to the welfare of such areas, there are authorized to be appropriated such sums as the Congress from time to time shall determine to be necessary for payments to the States on the basis of special needs in such areas as determined by the Secretary of Agriculture.
(c) Assistance
In determining that the area has such special need, the Secretary shall find that it has a substantial number of disadvantaged farms or farm families for one or more of the reasons heretofore enumerated. The Secretary shall make provisions for the assistance to be extended to include one or more of the following: (1) Intensive on-the-farm educational assistance to the farm family in appraising and resolving its problems; (2) assistance and counseling to local groups in appraising resources for capability of improvement in agriculture or introduction of industry designed to supplement farm income; (3) cooperation with other agencies and groups in furnishing all possible information as to existing employment opportunities, particularly to farm families having under-employed workers; and (4) in cases where the farm family, after analysis of its opportunities and existing resources, finds it advisable to seek a new farming venture, the providing of information, advice, and counsel in connection with making such change.
(d) Allocation of funds
No more than 10 per centum of the sums available under this section shall be allotted to any one State. The Secretary shall use project proposals and plans of work submitted by the State Extension directors as a basis for determining the allocation of funds appropriated pursuant to this section.
(e) Appropriation as additional; limitation on amount
Sums appropriated pursuant to this section shall be in addition to, and not in substitution for, appropriations otherwise available under this subchapter. The amounts authorized to be appropriated pursuant to this section shall not exceed a sum in any year equal to 10 per centum of sums otherwise appropriated pursuant to this subchapter.
(May 8, 1914, ch. 79, §8, as added Aug. 11, 1955, ch. 798, §1(a), 69 Stat. 683; amended Pub. L. 87–749, §1(h), Oct. 5, 1962, 76 Stat. 745.)
Editorial Notes
Prior Provisions
A prior section 8 of act May 8, 1914, was renumbered section 9 and is classified to section 348 of this title.
Amendments
1962—Subsec. (b). Pub. L. 87–749 struck out ", Alaska, Hawaii, and Puerto Rico" before "on the basis of".
§348. Rules and regulations
The Secretary of Agriculture is authorized to make such rules and regulations as may be necessary for carrying out the provisions of this subchapter.
(May 8, 1914, ch. 79, §9, formerly §8, 38 Stat. 374; June 26, 1953, ch. 157, §1, 67 Stat. 85; renumbered §9, Aug. 11, 1955, ch. 798, §1(b), 69 Stat. 684.)
Editorial Notes
Amendments
1953—Act June 26, 1953, substituted provisions for rules and regulations for provisions empowering Congress to alter, amend, or repeal sections 341 to 343 and 344 to 348 of this title at any time.
§349. "State" defined
The term "State" means the States of the Union, Puerto Rico, the Virgin Islands, Guam and the Northern Mariana Islands.
(May 8, 1914, ch. 79, §10, as added Pub. L. 87–749, §1(i), Oct. 5, 1962, 76 Stat. 745; amended Pub. L. 92–318, title V, §506(h), June 23, 1972, 86 Stat. 351; Pub. L. 99–396, §9(f), Aug. 27, 1986, 100 Stat. 840.)
Editorial Notes
Amendments
1986—Pub. L. 99–396 amended section generally, expanding definition of "State" to include the Northern Mariana Islands.
1972—Pub. L. 92–318 inserted reference to Virgin Islands and Guam.
Statutory Notes and Related Subsidiaries
Effective Date of 1972 Amendment
Amendment by Pub. L. 92–318 effective after June 30, 1970, see section 506(n) of Pub. L. 92–318, set out as a note under section 326a of this title.
CHAPTER 14—AGRICULTURAL EXPERIMENT STATIONS
SUBCHAPTER I—GENERAL PROVISIONS
SUBCHAPTER II—EXPERIMENT STATIONS FOR PROPAGATION OF TREES, SHRUBS, VINES, AND VEGETABLES
SUBCHAPTER III—RESEARCH FACILITIES
SUBCHAPTER I—GENERAL PROVISIONS
§361. Repealed. Aug. 11, 1955, ch. 790, §2, 69 Stat. 674
Section, acts Mar. 16, 1906, ch. 951, §4, 34 Stat. 64; Feb. 24, 1925, ch. 308, §4, 43 Stat. 971, provided for the administration of the agricultural experiment station program. See section 361g of this title.
Statutory Notes and Related Subsidiaries
Existing Rights and Liabilities
Act Aug. 11, 1955, ch. 790, §2, 69 Stat. 674, which repealed sections 361, 364, 366, 369, 369a, 371 to 376, 380, 382, 383, 386 to 386f, 427a to 427h, and 427j of this title, provided in part that any rights or liabilities existing under such repealed sections or parts of sections should not be affected by their repeal.
§361a. Congressional declaration of purpose; definitions
It is the policy of Congress to continue the agricultural research at State agricultural experiment stations which has been encouraged and supported by the Hatch Act of 1887 [7 U.S.C. 361a et seq.], the Adams Act of 1906, the Purnell Act of 1925, the Bankhead-Jones Act of 1935, and title I, section 9, of that Act as added by the Act of August 14, 1946, and Acts amendatory and supplementary thereto, and to promote the efficiency of such research by a codification and simplification of such laws. As used in this Act [7 U.S.C. 361a et seq.], the terms "State" or "States" are defined to include the several States (including the District of Columbia), Puerto Rico, Guam and the Virgin Islands. As used in this Act [7 U.S.C. 361a et seq.], the term "State agricultural experiment station" means a department which shall have been established, under direction of the college or university or agricultural departments of the college or university in each State in accordance with an Act approved July 2, 1862, (12 Stat. 503), entitled "An Act donating public lands to the several States and Territories which may provide colleges for the benefit of agriculture and the mechanic arts" [7 U.S.C. 301 et seq.]; or such other substantially equivalent arrangements as any State shall determine.
(Mar. 2, 1887, ch. 314, §1, 24 Stat. 440; Aug. 11, 1955, ch. 790, §1, 69 Stat. 671; Pub. L. 92–318, title V, §506(k), June 23, 1972, 86 Stat. 351; Pub. L. 93–471, title II, §208(e), Oct. 26, 1974, 88 Stat. 1429; Pub. L. 105–185, title II, §203(c)(1), June 23, 1998, 112 Stat. 534.)
Editorial Notes
References in Text
The Hatch Act of 1887, referred to in text, is act Mar. 2, 1887, ch. 314, 24 Stat. 440, which is classified generally to sections 361a to 361i of this title. For complete classification of this act to the Code, see Short Title note set out below, and Tables.
The Adams Act of 1906, referred to in text, is act Mar. 16, 1906, ch. 951, 34 Stat. 63, which was classified to sections 361, 366, 369, 371, 373 to 376, 380, and 382 of this title, and was repealed by act Aug. 11, 1955, ch. 790, §2, 69 Stat. 674. For complete classification of this Act to the Code prior to repeal, see Tables.
The Purnell Act of 1925, referred to in text, is act Feb. 24, 1925, ch. 308, 43 Stat. 970, which was classified to sections 361, 366, 370, 371, 373 to 376, 380, and 382 of this title, and was repealed by act Aug. 11, 1955, ch. 790, §2, 69 Stat. 674. For complete classification of this Act to the Code prior to repeal, see Tables.
The Bankhead-Jones Act, referred to in text, is act June 29, 1935, ch. 338, 49 Stat. 436, also popularly known as the Agricultural Research Act. For complete classification of this Act to the Code, see Short Title of 1935 Amendment note under section 3101 of this title and Tables.
Title I, section 9, of that Act, referred to in text, was classified to section 427h of this title prior to repeal.
The Act approved July 2, 1862 (12 Stat. 503), referred to in text, is act July 2, 1862, ch. 130, 12 Stat. 503, popularly known as the "Morrill Act" and also as the "First Morrill Act", which is classified generally to subchapter I (§301 et seq.) of chapter 13 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 301 of this title and Tables.
Codification
Section 208 of Pub. L. 93–471, cited as a credit to this section, was renumbered section "209" by D.C. Law 1–36, §4, Nov. 1, 1975, 22 DCR 2911.
Section was formerly classified to section 362 of this title.
Amendments
1998—Pub. L. 105–185 struck out "Alaska, Hawaii," before "Puerto Rico" in second sentence.
1974—Pub. L. 93–471 defined "State" to include the District of Columbia.
1972—Pub. L. 92–318 defined "State" to include Guam and the Virgin Islands.
1955—Act Aug. 11, 1955, amended section generally to continue agricultural research at the agricultural experiment stations, to restate the declaration of purpose, and to insert definitions of "State" and "State agricultural experiment station." Former provisions which required division of appropriations between colleges of same state are now contained in section 361h of this title.
Statutory Notes and Related Subsidiaries
Effective Date of 1974 Amendment
Amendment by Pub. L. 93–471 effective July 1, 1975, unless Pub. L. 93–471 repealed by District of Columbia Council after Jan. 2, 1975, and prior to July 1, 1975; or such amendment by Pub. L. 93–471, as amended by the District Council, also effective July 1, 1975, or some other date prescribed by the Council as authorized under provisions of section 407 of Pub. L. 93–471.
Effective Date of 1972 Amendment
Amendment by Pub. L. 92–318 effective after June 30, 1970, see section 506(n) of Pub. L. 92–318, set out as an Effective Date note under section 326a of this title.
Short Title
Act Mar. 2, 1887, ch. 314, §10, as added by Pub. L. 105–185, §3(b), June 23, 1998, 112 Stat. 526, provided that: "This Act [enacting sections 361a to 361i of this title] may be cited as the 'Hatch Act of 1887'."
Arlington Estate
Besides the provisions establishing agricultural experiment stations, contained in act Mar. 2, 1887, a portion of the Arlington estate in the State of Virginia was set apart for experimental agricultural purposes by act April 18, 1900, ch. 243, 31 Stat. 135, and provisions for establishing and maintaining a general experimental farm and agricultural station thereon were made by the subsequent agricultural appropriation acts.
Executive Documents
Admission of Alaska and Hawaii to Statehood
Alaska was admitted into the Union on Jan. 3, 1959, on issuance of Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, and Hawaii was admitted into the Union on Aug. 21, 1959, on issuance of Proc. No. 3309, Aug. 21, 1959, 24 F.R. 6868, 73 Stat. c74. For Alaska Statehood Law, see Pub. L. 85–508, July 7, 1958, 72 Stat. 339, set out as a note preceding section 21 of Title 48, Territories and Insular Possessions. For Hawaii Statehood Law, see Pub. L. 86–3, Mar. 18, 1959, 73 Stat. 4, set out as a note preceding section 491 of Title 48.
§361b. Congressional statement of policy; researches, investigations and experiments
It is further the policy of the Congress to promote the efficient production, marketing, distribution, and utilization of products of the farm as essential to the health and welfare of our peoples and to promote a sound and prosperous agriculture and rural life as indispensable to the maintenance of maximum employment and national prosperity and security. It is also the intent of Congress to assure agriculture a position in research equal to that of industry, which will aid in maintaining an equitable balance between agriculture and other segments of our economy. It shall be the object and duty of the State agricultural experiment stations through the expenditure of the appropriations hereinafter authorized to conduct original and other researches, investigations, and experiments bearing directly on and contributing to the establishment and maintenance of a permanent and effective agricultural industry of the United States, including researches basic to the problems of agriculture in its broadest aspects, and such investigations as have for their purpose the development and improvement of the rural home and rural life and the maximum contribution by agriculture to the welfare of the consumer, as may be deemed advisable, having due regard to the varying conditions and needs of the respective States.
(Mar. 2, 1887, ch. 314, §2, 24 Stat. 440; Aug. 11, 1955, ch. 790, §1, 69 Stat. 671.)
Editorial Notes
Codification
Section was formerly classified to section 363 of this title.
Amendments
1955—Act Aug. 11, 1955, amended section generally to restate the policy of Congress.
§361c. Authorization of appropriations and allotments of grants
(a) Authorization
There are authorized to be appropriated for the purposes of sections 361a to 361i of this title such sums as Congress may from time to time determine to be necessary.
(b) Allotments to States; authorization of appropriations for Virgin Islands and Guam; limitation
(1) Out of such sums each State shall be entitled to receive annually a sum of money equal to and subject to the same requirement as to use for marketing research projects as the sums received from Federal appropriations for State agricultural experiment stations for the fiscal year 1955, except that amounts heretofore made available from the fund known as the "Regional research fund, Office of Experiment Stations" shall continue to be available for the support of cooperative regional projects as defined in subsection (c)(3), and the said fund shall be designated "Regional research fund, State agricultural experiment stations," and the Secretary of Agriculture shall be entitled to receive annually for the administration of sections 361a to 361i of this title, a sum not less than that available for this purpose for the fiscal year ending June 30, 1955: Provided, That if the appropriations hereunder available for distribution in any fiscal year are less than those for the fiscal year 1955 the allotment to each State and the amounts for Federal administration and the regional research fund shall be reduced in proportion to the amount of such reduction.
(2) There is authorized to be appropriated for the fiscal year ending June 30, 1973, and for each fiscal year thereafter, for payment to the Virgin Islands and Guam, $100,000 each, which sums shall be in addition to the sums appropriated for the several States of the United States and Puerto Rico under the provisions of this section. The amount paid by the Federal Government to the Virgin Islands and Guam pursuant to this paragraph shall not exceed during any fiscal year, except the fiscal years ending June 30, 1971, and June 30, 1972, when such amount may be used to pay the total cost of providing services pursuant to sections 361a to 361i of this title, the amount available and budgeted for expenditure by the Virgin Islands and Guam for the purposes of such sections.
(c) Allotment of additional sums
Any sums made available by the Congress in addition to those provided for in subsection (b) of this section for State agricultural experiment station work shall be distributed as follows:
(1) Twenty per centum shall be allotted equally to each State;
(2) Not less than 52 per centum of such sums shall be allotted to each State, as follows: One-half in an amount which bears the same ratio to the total amount to be allotted as the rural population of the State bears to the total rural population of all the States as determined by the last preceding decennial census current at the time each such additional sum is first appropriated; and one-half in an amount which bears the same ratio to the total amount to be allotted as the farm population of the State bears to the total farm population of all the States as determined by the last preceding decennial census current at the time such additional sum is first appropriated;
(3) Not less than 25 percent shall be allotted to the States for cooperative research employing multidisciplinary approaches in which a State agricultural experiment station, working with another State agricultural experiment station, the Agricultural Research Service, or a college or university, cooperates to solve problems that concern more than 1 State. The funds available under this paragraph, together with the funds available under subsection (b) for a similar purpose, shall be designated as the "Multistate Research Fund, State Agricultural Experiment Stations".
(4) Three per centum shall be available to the Secretary of Agriculture for administration of sections 361a to 361i of this title. These administrative funds may be used for transportation of scientists who are not officers or employees of the United States to research meetings convened for the purpose of assessing research opportunities or research planning.
(d) Matching funds
(1) Requirement
Except as provided in paragraph (4), no allotment shall be made to a State under subsection (b) or (c), and no payments from the allotment shall be made to a State, in excess of the amount that the State makes available out of non-Federal funds for agricultural research and for the establishment and maintenance of facilities for the performance of the research.
(2) Failure to provide matching funds
If a State fails to comply with the requirement to provide matching funds for a fiscal year under paragraph (1), the Secretary of Agriculture shall withhold from payment to the State for that fiscal year an amount equal to the difference between—
(A) the amount that would be allotted and paid to the State under subsections (b) and (c) (if the full amount of matching funds were provided by the State); and
(B) the amount of matching funds actually provided by the State.
(3) Reapportionment
(A) In general
The Secretary of Agriculture shall reapportion amounts withheld under paragraph (2) for a fiscal year among the States satisfying the matching requirement for that fiscal year.
(B) Matching requirement
Any reapportionment of funds under this paragraph shall be subject to the matching requirement specified in paragraph (1).
(4) Exception for insular areas and the District of Columbia
(A) In general
Effective beginning for fiscal year 2003, in lieu of the matching funds requirement of paragraph (1), the insular areas of the Commonwealth of Puerto Rico, Guam, and the Virgin Islands of the United States and the District of Columbia shall provide matching funds from non-Federal sources in an amount equal to not less than 50 percent of the formula funds distributed by the Secretary to each of the insular areas, respectively, and the District of Columbia under this section.
(B) Waivers
The Secretary may waive the matching fund requirement of subparagraph (A) for any fiscal year if the Secretary determines that the government of the insular area or the District of Columbia will be unlikely to meet the matching requirement for the fiscal year.
(e) "Administration" defined
"Administration" as used in this section shall include participation in planning and coordinating cooperative regional research as defined in subsection (c)(3).
(f) Adjustment of payments
In making payments to States, the Secretary of Agriculture is authorized to adjust any such payment to the nearest dollar.
(g) Reductions and reapportionments
If in any year the amount made available by a State from its own funds (including any revenue-sharing funds) to a State agricultural experiment station is reduced because of an increase in the allotment made available under sections 361a to 361i of this title, the allotment to the State agricultural experiment station from the appropriation in the next succeeding fiscal year shall be reduced in an equivalent amount. The Secretary shall reapportion the amount of such reduction to other States for use by their agricultural experiment stations.
(h) Peer review
Research carried out under subsection (c)(3) shall be subject to scientific peer review. The review of a project conducted under this subsection shall be considered to satisfy the merit review requirements of section 7613(e) of this title.
(i) Integration of research and extension
(1) In general
Not less than the applicable percentage specified under paragraph (2) of the Federal formula funds that are paid under sections 361a to 361i of this title and subsections (b) and (c) of section 343 of this title to colleges and universities eligible to receive funds under the Act of July 2, 1862 (12 Stat. 503, chapter 130; 7 U.S.C. 301 et seq.), during a fiscal year shall be expended for activities that integrate cooperative research and extension (referred to in this subsection as "integrated activities").
(2) Applicable percentages
(A) 1997 expenditures on multistate activities
Of the Federal formula funds that were paid to each State for fiscal year 1997 under sections 361a to 361i of this title and subsections (b) and (c) of section 343 of this title, the Secretary of Agriculture shall determine the percentage that the State expended for integrated activities.
(B) Required expenditures on multistate activities
Of the Federal formula funds that are paid to each State for fiscal year 2000 and each subsequent fiscal year under sections 361a to 361i of this title and subsections (b) and (c) of section 343 of this title, the State shall expend for the fiscal year for integrated activities a percentage that is at least equal to the lesser of—
(i) 25 percent; or
(ii) twice the percentage for the State determined under subparagraph (A).
(C) Reduction by Secretary
The Secretary of Agriculture may reduce the minimum percentage required to be expended by a State for integrated activities under subparagraph (B) in a case of hardship, infeasibility, or other similar circumstance beyond the control of the State, as determined by the Secretary.
(3) Applicability
This subsection does not apply to funds provided—
(A) by a State or local government pursuant to a matching requirement;
(B) to a 1994 Institution (as defined in section 532 of the Equity in Educational Land-Grant Status Act of 1994 (Public Law 103–382; 7 U.S.C. 301 note)); or
(C) to the Commonwealth of Puerto Rico, the Virgin Islands, or Guam.
(4) Relationship to other requirements
Federal formula funds described in paragraph (1) that are used by a State for a fiscal year for integrated activities in accordance with paragraph (2)(B) may also be used to satisfy the multistate activities requirements of subsection (c)(3) of this section and section 343(h) of this title for the same fiscal year.
(Mar. 2, 1887, ch. 314, §3, 24 Stat. 441; Aug. 11, 1955, ch. 790, §1, 69 Stat. 671; Pub. L. 92–318, title V, §506(l), June 23, 1972, 86 Stat. 351; Pub. L. 95–113, title XIV, §1466, Sept. 29, 1977, 91 Stat. 1018; Pub. L. 97–98, title XIV, §1442(a), Dec. 22, 1981, 95 Stat. 1321; Pub. L. 101–624, title XVI, §1618(a), Nov. 28, 1990, 104 Stat. 3733; Pub. L. 104–127, title VIII, §869, Apr. 4, 1996, 110 Stat. 1175; Pub. L. 105–185, title I, §104, title II, §§203(a), 204(a), June 23, 1998, 112 Stat. 529, 533, 535; Pub. L. 105–277, div. A, §101(a) [title VII, §753(d)], Oct. 21, 1998, 112 Stat. 2681, 2681-33; Pub. L. 107–171, title VII, §7213(a), May 13, 2002, 116 Stat. 448; Pub. L. 110–234, title VII, §7404(a), May 22, 2008, 122 Stat. 1246; Pub. L. 110–246, §4(a), title VII, §7404(a), June 18, 2008, 122 Stat. 1664, 2008; Pub. L. 115–334, title VII, §7612(b)(1), Dec. 20, 2018, 132 Stat. 4832.)
Editorial Notes
References in Text
Act of July 2, 1862, referred to in subsec. (i)(1), is act July 2, 1862, ch. 130, 12 Stat. 503, popularly known as the "Morrill Act" and also as the "First Morrill Act", which is classified generally to subchapter I (§301 et seq.) of chapter 13 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 301 of this title and Tables.
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Prior to being amended generally by act Aug. 11, 1955, ch. 790, §1, 69 Stat. 671, section 3 of act Mar. 2, 1887, which comprises this section, consisted of two sentences. The first sentence was classified to former section 368 of this title. The second sentence was superseded by act Feb. 24, 1925, ch. 308, §3, 43 Stat. 971, which was classified to former section 366 of this title and was repealed by act Aug. 11, 1955, ch. 790, §2, 69 Stat. 674.
Amendments
2018—Subsec. (h). Pub. L. 115–334, §7612(b)(1)(A), amended subsec. (h) generally. Prior to amendment, subsec. (h) related to peer review and plan of work.
Subsec. (i)(2)(D). Pub. L. 115–334, §7612(b)(1)(B), struck out subpar. (D). Prior to amendment, text read as follows: "The State shall include in the plan of work of the State required under section 361g of this title or section 344 of this title, as applicable, a description of the manner in which the State will meet the requirements of this paragraph."
2008—Subsec. (d)(4). Pub. L. 110–246, §7404(a)(1), inserted "and the District of Columbia" after "areas" in heading.
Subsec. (d)(4)(A). Pub. L. 110–246, §7404(a)(2), inserted "and the District of Columbia" after "United States" and after "respectively,".
Subsec. (d)(4)(B). Pub. L. 110–246, §7404(a)(3), inserted "or the District of Columbia" after "area".
2002—Subsec. (d)(4). Pub. L. 107–171 added par. (4) and struck out heading and text of former par. (4). Text read as follows: "In lieu of the matching funds requirement of paragraph (1), the Commonwealth of Puerto Rico, the Virgin Islands, and Guam shall be subject to the same matching funds requirements as those applicable to an eligible institution under section 3222d of this title."
1998—Subsec. (b)(1). Pub. L. 105–185, §104(b)(1), made technical amendment to reference in original act which appears in text as reference to subsection (c)(3) of this section.
Subsec. (c)(1), (2). Pub. L. 105–185, §104(a)(1)(A), redesignated pars. 1 and 2 as (1) and (2), respectively.
Subsec. (c)(3). Pub. L. 105–185, §104(a)(1)(B), added par. (3) and struck out former par. (3) which read as follows: "Not more than 25 per centum shall be allotted to the States for cooperative research in which two or more State agricultural experiment stations are cooperating to solve problems that concern the agriculture of more than one State. The funds available for such purposes, together with funds available pursuant to subsection (b) of this section for like purpose shall be designated as the 'Regional research fund, State agricultural experiment stations';".
Pub. L. 105–185, §104(a)(1)(A), redesignated par. 3 as (3).
Subsec. (c)(4), (5). Pub. L. 105–185, §104(a)(1)(A), redesignated par. 5 as (4).
Subsec. (d). Pub. L. 105–185, §203(a), added subsec. (d) and struck out former subsec. (d) which read as follows: "Of any amount in excess of $90,000 available under sections 361a to 361i of this title for allotment to any State, exclusive of the regional research fund, State agricultural experiment stations, no allotment and no payments thereof shall be made in excess of the amount which the State makes available out of its own funds for research and for the establishment and maintenance of facilities necessary for the prosecution of such research: And provided further, That if any State fails to make available for such research purposes for any fiscal year a sum equal to the amount in excess of $90,000 to which it may be entitled for such year, the remainder of such amount shall be withheld by the Secretary of Agriculture and reapportioned among the States."
Subsec. (d)(1). Pub. L. 105–277, §101(a) [title VII, §753(d)(1)], substituted "Except as provided in paragraph (4), no" for "No".
Subsec. (d)(4). Pub. L. 105–277, §101(a) [title VII, §753(d)(2)], added par. (4).
Subsec. (e). Pub. L. 105–185, §104(b)(2), substituted "subsection (c)(3)" for "subsection (c)3".
Subsec. (h). Pub. L. 105–185, §104(a)(2), added subsec. (h).
Subsec. (i). Pub. L. 105–185, §204(a), added subsec. (i).
1996—Subsec. (c)(3). Pub. L. 104–127 struck out ", and shall be used only for such cooperative regional projects as are recommended by a committee of nine persons elected by and representing the directors of the State agricultural experiment stations, and approved by the Secretary of Agriculture. The necessary travel expenses of the committee of nine persons in performance of their duties may be paid from the fund established by this paragraph" before semicolon at end.
1990—Subsec. (d). Pub. L. 101–624 inserted before period at end "and reapportioned among the States".
1981—Subsec. (g). Pub. L. 97–98 added subsec. (g).
1977—Subsec. (c)(4). Pub. L. 95–113, §1466(a), struck out par. (4) which provided that not less than 20 per centum of any sums appropriated pursuant to subsec. (c) for distribution to States be used for conducting marketing research projects approved by the Department of Agriculture.
Subsec. (c)(5). Pub. L. 95–113, §1466(b), inserted provision authorizing the use of administrative funds for the transportation of scientists who are not officers or employees of the United States to research meetings convened for the purpose of assessing research opportunities or research planning.
1972—Subsec. (b). Pub. L. 92–318 designated existing provisions as par. (1) and added par. (2).
1955—Act Aug. 11, 1955, amended section generally to authorize appropriations and to provide for allotment of grants. For provisions which related to advice and assistance by the Secretary of Agriculture, see section 361g of this title.
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Effective Date of 1998 Amendment
Amendment by Pub. L. 105–277 effective June 23, 1998, see section 101(a) [title VII, §753(f)] of Pub. L. 105–277, set out as a note under section 343 of this title.
Effective Date of 1981 Amendment
Amendment by Pub. L. 97–98 effective Dec. 22, 1981, see section 1801 of Pub. L. 97–98, set out as an Effective Date note under section 4301 of this title.
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date of 1972 Amendment
Amendment by Pub. L. 92–318 effective after June 30, 1970, see section 506(n) of Pub. L. 92–318, set out as an Effective Date note under section 326a of this title.
§361d. Use of funds
Moneys appropriated pursuant to sections 361a to 361i of this title shall also be available, in addition to meeting expenses for research and investigations conducted under authority of section 361b of this title, for printing and disseminating the results of such research, retirement of employees subject to the provisions of section 331 of this title, administrative planning and direction, and for the purchase and rental of land and the construction, acquisition, alteration, or repair of buildings necessary for conducting research. The State agricultural experiment stations are authorized to plan and conduct any research authorized under section 361b of this title in cooperation with each other and such other agencies and individuals as may contribute to the solution of the agricultural problems involved, and moneys appropriated pursuant to sections 361a to 361i of this title shall be available for paying the necessary expenses of planning, coordinating, and conducting such cooperative research.
(Mar. 2, 1887, ch. 314, §4, 24 Stat. 441; Aug. 11, 1955, ch. 790, §1, 69 Stat. 672.)
Editorial Notes
Codification
Section was formerly classified to section 365 of this title.
Amendments
1955—Act Aug. 11, 1955, amended section generally to provide for printing and disseminating the results of research, retirement of employees, administrative planning and direction, purchase and rental of land, and the construction, acquisition, alteration, or repair of buildings necessary for conducting research. Former provisions which related to issuance and free mailing of publications are now contained in section 361f of this title.
§361e. Payment of allotments to State agricultural experiment stations; directors and treasurers or other officers; accounting; reports to Secretary; replacement by States of diminished, lost or misapplied allotments; subsequent allotments or payments contingent on such replacement
Sums available for allotment to the States under the terms of sections 361a to 361i of this title, excluding the Multistate Research Fund, State Agricultural Experiment Stations, shall be paid to each State agricultural experiment station in equal quarterly payments beginning on the first day of October of each fiscal year upon vouchers approved by the Secretary of Agriculture. Each such station authorized to receive allotted funds shall have a chief administrative officer known as a director, and a treasurer or other officer appointed by the governing board of the station. Such treasurer or other officer shall receive and account for all funds allotted to the State under the provisions of sections 361a to 361i of this title and shall report, with the approval of the director, to the Secretary of Agriculture on or before the first day of December of each year a detailed statement of the amount received under provisions of said sections during the preceding fiscal year, and of its disbursement on schedules prescribed by the Secretary of Agriculture. If any portion of the allotted moneys received by the authorized receiving officer of any State agricultural experiment station shall by any action or contingency be diminished, lost, or misapplied, it shall be replaced by the State concerned and until so replaced no subsequent appropriation shall be allotted or paid to such State.
(Mar. 2, 1887, ch. 314, §5, 24 Stat. 441; Aug. 11, 1955, ch. 790, §1, 69 Stat. 673; Pub. L. 94–273, §9(2), Apr. 21, 1976, 90 Stat. 378; Pub. L. 105–185, title II, §203(c)(3), June 23, 1998, 112 Stat. 535.)
Editorial Notes
Codification
Section was formerly classified to section 368a of this title. See sections 361c and 361d of this title.
Amendments
1998—Pub. L. 105–185, §203(c)(3), substituted "Multistate Research Fund, State Agricultural Experiment Stations" for "regional research fund authorized by section 361c(c)(3) of this title" in first sentence.
1976—Pub. L. 94–273 substituted "October" for "July" and "December" for "September".
1955—Act Aug. 11, 1955, amended section generally to provide for quarterly payment of allotments, to require annual report of allotments and disbursements, and to provide for replacement of funds diminished, lost, or misapplied. For provisions which authorized appropriations for investigations and experiments, see sections 361c and 361d of this title.
§361f. Publications of experiment stations; free mailing
Bulletins, reports, periodicals, reprints of articles, and other publications necessary for the dissemination of results of the researches and experiments, including lists of publications available for distribution by the experiment stations, shall be transmitted in the mails of the United States. Such publications may be mailed from the principal place of business of the station or from an established subunit of said station.
(Mar. 2, 1887, ch. 314, §6, 24 Stat. 441; Aug. 11, 1955, ch. 790, §1, 69 Stat. 673; Pub. L. 91–375, §4(a), Aug. 12, 1970, 84 Stat. 773; Pub. L. 110–234, title VII, §7404(b)(1), May 22, 2008, 122 Stat. 1247; Pub. L. 110–246, §4(a), title VII, §7404(b)(1), June 18, 2008, 122 Stat. 1664, 2008.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Section was formerly classified to section 377 of this title. See section 361g of this title.
Amendments
2008—Pub. L. 110–246, §7404(b)(1), in first sentence, struck out before period at end "under penalty indicia: Provided, however, That each publication shall bear such indicia as are prescribed by the United States Postal Service and shall be mailed under such regulations as the United States Postal Service may from time to time prescribe".
1955—Act Aug. 11, 1955, amended section generally to authorize free mailing of publications by the agricultural experiment stations. For provisions which related to the unexpended balance of annual appropriation, see section 361g of this title.
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Transfer of Functions
"United States Postal Service" substituted in text for "Postmaster General" pursuant to Pub. L. 91–375, §4(a), Aug. 12, 1970, 84 Stat. 773, set out as a note under section 201 of Title 39, Postal Service, which abolished office of Postmaster General of Post Office Department and transferred its functions to United States Postal Service.
§361g. Duties of Secretary; ascertainment of entitlement of State to funds; plans of work
(a) Duties of Secretary
The Secretary of Agriculture is charged with the responsibility for the proper administration of sections 361a to 361i of this title, and is authorized and directed to prescribe such rules and regulations as may be necessary to carry out its provisions. It shall be the duty of the Secretary to furnish such advice and assistance as will best promote the purposes of said sections, including participation in coordination of research initiated under said sections by the State agricultural experiment stations, from time to time to indicate such lines of inquiry as to him seem most important, and to encourage and assist in the establishment and maintenance of cooperation by and between the several State agricultural experiment stations, and between the stations and the United States Department of Agriculture.
(b) Ascertainment of entitlement
On or before the first day of October in each year after the passage of sections 361a to 361i of this title, the Secretary of Agriculture shall ascertain as to each State whether it is entitled to receive its share of the annual appropriations for agricultural experiment stations under said sections and the amount which thereupon each is entitled, respectively, to receive.
(c) Carryover
(1) In general
The balance of any annual funds provided under sections 361a to 361i of this title to a State agricultural experiment station for a fiscal year that remains unexpended at the end of the fiscal year may be carried over for use during the following fiscal year.
(2) Failure to expend full allotment
(A) In general
If any unexpended balance carried over by a State is not expended by the end of the second fiscal year, an amount equal to the unexpended balance shall be deducted from the next succeeding annual allotment to the State.
(B) Redistribution
Federal funds that are deducted under subparagraph (A) for a fiscal year shall be redistributed by the Secretary in accordance with the formula set forth in section 361c(c) of this title to those States for which no deduction under subparagraph (A) has been taken for that fiscal year.
(d) Plan of work required
Before funds may be provided to a State under sections 361a to 361i of this title for any fiscal year, a plan of work to be carried out under sections 361a to 361i of this title shall be submitted by the proper officials of the State and shall be approved by the Secretary of Agriculture.
(e) Requirements related to plan of work
Each plan of work for a State required under subsection (d) shall contain descriptions of the following:
(1) A summary of planned projects or programs in the State using formula funds.
(2) A description of the manner in which the State will meet the requirements of subsections (c)(3) and (i)(2) of section 361c of this title.
(3) A description of matching funds provided by the State with respect to the previous fiscal year.
(f) Research protocols
(1) Development
The Secretary of Agriculture shall develop protocols to be used to evaluate the success of multistate, multi-institutional, and multidisciplinary research activities and joint research and extension activities in addressing critical agricultural issues identified in the plans of work submitted under subsection (d).
(2) Consultation
The Secretary of Agriculture shall develop the protocols in consultation with the National Agricultural Research, Extension, Education, and Economics Advisory Board established under section 3123 of this title and land-grant colleges and universities.
(g) Treatment of plans of work for other purposes
To the maximum extent practicable, the Secretary shall consider a plan of work submitted under subsection (d) to satisfy other appropriate Federal reporting requirements.
(Mar. 2, 1887, ch. 314, §7, 24 Stat. 441; Aug. 11, 1955, ch. 790, §1, 69 Stat. 673; Pub. L. 86–533, §1(22), June 29, 1960, 74 Stat. 249; Pub. L. 94–273, §3(2), Apr. 21, 1976, 90 Stat. 376; Pub. L. 105–185, title I, §103(f)(2), title II, §202(b), June 23, 1998, 112 Stat. 528, 532; Pub. L. 107–171, title VII, §7202, May 13, 2002, 116 Stat. 437; Pub. L. 115–334, title VII, §7612(b)(2), Dec. 20, 2018, 132 Stat. 4832.)
Editorial Notes
Codification
Section was formerly classified to section 379 of this title. See section 361h of this title.
Amendments
2018—Subsec. (e). Pub. L. 115–334 added pars. (1) to (3) and struck out former pars. (1) to (4) which read as follows:
"(1) The critical short-term, intermediate, and long-term agricultural issues in the State and the current and planned research programs and projects targeted to address the issues.
"(2) The process established to consult with users of agricultural research regarding the identification of critical agricultural issues in the State and the development of research programs and projects targeted to address the issues.
"(3) The efforts made to identify and collaborate with other colleges and universities within the State, and within other States, that have a unique capacity to address the identified agricultural issues in the State and the extent of current and emerging efforts (including regional efforts) to work with those other institutions.
"(4) The manner in which research and extension, including research and extension activities funded other than through formula funds, will cooperate to address the critical issues in the State, including the activities to be carried out separately, the activities to be carried out sequentially, and the activities to be carried out jointly."
2002—Subsec. (c). Pub. L. 107–171 added subsec. (c) and struck out heading and text of former subsec. (c). Text read as follows: "Whenever it shall appear to the Secretary of Agriculture from the annual statement of receipts and expenditures of funds by any State agricultural experiment station that any portion of the preceding annual appropriation allotted to that station under sections 361a to 361i of this title remains unexpended, such amount shall be deducted from the next succeeding annual allotment to the State concerned."
1998—Pub. L. 105–185, §202(b), inserted section catchline, designated existing provisions as subsecs. (a) to (c), inserted subsec. headings, and added subsecs. (d) to (g).
Pub. L. 105–185, §103(f)(2), struck out at end "If the Secretary of Agriculture shall withhold from any State any portion of the appropriations available for allotment, the facts and reasons therefor shall be reported to the President and the amount involved shall be kept separate in the Treasury until the close of the next Congress. If the next Congress shall not direct such sum to be paid, it shall be carried to surplus."
1976—Pub. L. 94–273 substituted "October" for "July" in second par.
1960—Pub. L. 86–533 repealed provisions which required the Secretary of Agriculture to make a report to the Congress of the receipts, expenditures and work of the agricultural experiment stations in all the States under the provisions of sections 361a to 361i of this title.
1955—Act Aug. 11, 1955, amended section generally to prescribe the powers and duties of the Secretary of Agriculture, to provide for the determination of the amount of entitlement, to authorize deduction of unexpended balances, and to require reports. For provisions which stated that the relation of the college to the State was unaffected, see section 361h of this title.
Statutory Notes and Related Subsidiaries
Effective Date of 1998 Amendment
Amendment by section 202(b) of Pub. L. 105–185 effective Oct. 1, 1999, see section 202(c) of Pub. L. 105–185, set out as a note under section 344 of this title.
Executive Documents
Transfer of Functions
Functions of all officers, agencies, and employees of Department of Agriculture transferred, with certain exceptions, to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
§361h. Relation of college or university to State unaffected; division of appropriations
Nothing in sections 361a to 361i of this title shall be construed to impair or modify the legal relation existing between any of the colleges or universities under whose direction State agricultural experiment stations have been established and the government of the States in which they are respectively located. States having agricultural experiment stations separate from such colleges or universities and established by law, shall be authorized to apply such benefits to research at stations so established by such States: Provided, That in any State in which more than one such college, university, or agricultural experiment station has been established the appropriations made pursuant to sections 361a to 361i of this title for such State shall be divided between such institutions as the legislature of such State shall direct.
(Mar. 2, 1887, ch. 314, §8, 24 Stat. 441; Aug. 11, 1955, ch. 790, §1, 69 Stat. 674.)
Editorial Notes
Codification
Section was formerly classified to section 378 of this title.
Amendments
1955—Act Aug. 11, 1955, amended section generally to provide that the relation between the college and the State is to be unaffected, and to require division of appropriations.
§361i. Power to amend, repeal, etc., reserved
The Congress may at any time, amend, suspend, or repeal any or all of the provisions of sections 361a to 361i of this title.
(Mar. 2, 1887, ch. 314, §9, 24 Stat. 442; Aug. 11, 1955, ch. 790, §1, 69 Stat. 674.)
Editorial Notes
Codification
Section was formerly classified to section 368b of this title. The provisions of section 368b were eliminated from section 361i of this title.
Amendments
1955—Act Aug. 11, 1955, amended section generally to reserve the right to Congress to amend, suspend, or repeal any or all of the provisions of sections 361a to 361i of this title, and to strike out provisions which subjected grants of moneys to the legislative assent of the several States and Territories.
§§362, 363. Transferred
Editorial Notes
Codification
Sections, act Mar. 2, 1887, ch. 314, §§1, 2, 24 Stat. 440, as amended, were transferred to sections 361a and 361b, respectively, of this title.
§364. Repealed. Aug. 11, 1955, ch. 790, §2, 69 Stat. 675
Section, act Mar. 2, 1889, ch. 373, 25 Stat. 840, required all agricultural experiment stations to devote a portion of their work to the examination and classification of the soils of their respective States and Territories.
Statutory Notes and Related Subsidiaries
Existing Rights and Liabilities
Any rights or liabilities existing under this section as unaffected by repeal, see section 2 of act Aug. 11, 1955, set out as a note under former section 361 of this title.
§365. Transferred
Editorial Notes
Codification
Section, act Mar. 2, 1887, ch. 314, §4, 24 Stat. 441, as amended, was transferred to section 361d of this title. For provisions of section 365 of this title which related to issuance and free mailing by stations of bulletins or reports, see section 361f of this title.
§366. Repealed. Aug. 11, 1955, ch. 790, §2, 69 Stat. 674
Section, acts Mar. 16, 1906, ch. 951, §3, 34 Stat. 63; Feb. 24, 1925, ch. 308, §3, 43 Stat. 971, provided for annual reports by agricultural experiment stations to governors.
Statutory Notes and Related Subsidiaries
Existing Rights and Liabilities
Any rights or liabilities existing under this section as unaffected by repeal, see section 2 of act Aug. 11, 1955, set out as a note under section 361 of this title.
§367. Omitted
Editorial Notes
Codification
Section was from act July 28, 1953, ch. 251, title I, 67 Stat. 207, the Department of Agriculture Appropriation Act, 1954, and authorized the Secretary of Agriculture to prescribe the form of the annual financial statement required from the agricultural experiment stations. See section 361e of this title. Similar provisions were contained in the following prior appropriation acts:
July 5, 1952, ch. 574, title I, 66 Stat. 337.
Aug. 31, 1951, ch. 374, title I, 65 Stat. 228.
Sept. 6, 1950, ch. 896, ch. VI, title I, 64 Stat. 660.
June 29, 1949, ch. 280, title I, 63 Stat. 330.
June 19, 1948, ch. 543, title I, 62 Stat. 514.
July 30, 1947, ch. 356, title I, 61 Stat. 530.
June 22, 1946, ch. 445, 60 Stat. 277.
May 5, 1945, ch. 109, 59 Stat. 143.
June 28, 1944, ch. 296, 58 Stat. 432.
July 12, 1943, ch. 215, 57 Stat. 400.
July 22, 1942, ch. 516, 56 Stat. 670.
July 1, 1941, ch. 267, 55 Stat. 412.
June 25, 1940, ch. 421, 54 Stat. 536.
June 30, 1939, ch. 253, title I, 53 Stat. 944.
June 16, 1938, ch. 464, title I, 52 Stat. 715.
June 29, 1937, ch. 404, 50 Stat. 399.
June 4, 1936, ch. 489, 49 Stat. 1425.
May 17, 1935, ch. 131, title I, 49 Stat. 251.
Mar. 26, 1934, ch. 89, 48 Stat. 471.
Mar. 3, 1933, ch. 203, 47 Stat. 1435.
July 7, 1932, ch. 443, 47 Stat. 613.
Feb. 23, 1931, ch. 278, 46 Stat. 1246.
May 27, 1930, ch. 341, 46 Stat. 396.
Feb. 16, 1929, ch. 227, 45 Stat. 1192.
May 16, 1928, ch. 572, 45 Stat. 542.
Jan. 18, 1927, ch. 39, 44 Stat. 979.
May 11, 1926, ch. 286, 44 Stat. 502.
Feb. 10, 1925, ch. 200, 43 Stat. 824.
§§368 to 368b. Transferred
Editorial Notes
Codification
Section 368, act Mar. 2, 1887, ch. 314, §3, 24 Stat. 441, as amended, was transferred to section 361c of this title. For provisions of section 368 which provided for assistance and advice by the Secretary of Agriculture, see section 361g of this title.
Section 368a, act Mar. 2, 1887, ch. 314, §5, 24 Stat. 441, as amended, was transferred to section 361e of this title. For provisions of section 368a which authorized appropriations for investigations and experiments, see sections 361c and 361d of this title.
Section 368b, act Mar. 8, 1887, ch. 314, §9, 24 Stat, 442, as amended, was transferred to section 361i of this title. Former provisions of section 368b making grants of money authorized by section 368a of this title subject to the legislative assent of the States and Territories were eliminated from section 361i.
§368c. Omitted
Editorial Notes
Codification
Section, act Mar. 2, 1887, ch. 314, §10, 24 Stat. 442, which was not reenacted by act Aug. 11, 1955, ch. 790, 69 Stat. 671, reserved the right to Congress to amend, suspend, or repeal any or all of the provisions of act Mar. 2, 1887. See section 361i of this title.
§§369 to 376. Repealed. Aug. 11, 1955, ch. 790, §2, 69 Stat. 674
Section 369, act Mar. 16, 1906, ch. 951, §1, 34 Stat. 63, authorized annual appropriations for agricultural experiment stations. See section 361c of this title.
Section 369a, acts June 20, 1936, ch. 631, §§1, 2, 49 Stat. 1553, 1554; Aug. 29, 1950, ch. 820, 64 Stat. 563, extended provisions of former sections 343a, 343b, 361, 366, 369, 370, 371, 373 to 376, 380, and 382 of this title to Alaska. See section 361a of this title.
Section 370, act Feb. 24, 1925, ch. 308, §1, 43 Stat. 970, authorized an additional appropriation of $60,000 for each fiscal year. See section 361c of this title.
Section 371, acts Mar. 16, 1906, ch. 951, §2, 34 Stat. 63; Feb. 24, 1925, ch. 308, §2, 43 Stat. 971, made grants of money authorized for agricultural experiment stations subject to the legislative assent of the several States and Territories.
Section 372, act June 7, 1888, ch. 373, 25 Stat. 176, provided for assent to installments of appropriations when the legislature is not in session.
Section 373, acts Mar. 16, 1906, ch. 951, §2, 34 Stat. 63; Feb. 24, 1925, ch. 308, §2, 43 Stat. 971, prescribed the time and manner of payments to agricultural experiment stations and required a report of expenditures to the Secretary of Agriculture. See sections 361c and 361e of this title.
Section 374, acts Mar. 16, 1906, ch. 951, §3, 34 Stat. 63; Feb. 24, 1925, ch. 308, §3, 43 Stat. 971, required the State to replace moneys misapplied. See section 361e of this title.
Section 375, acts Mar. 16, 1906, ch. 951, §3, 34 Stat. 63; Feb. 24, 1925, ch. 308, §3, 43 Stat. 971, permitted use of funds for purchase, repairs, etc., of buildings, or for purchase or rental of lands. See section 361d of this title.
Section 376, acts Mar. 16, 1906, ch. 951, §4, 34 Stat. 64; Feb. 24, 1925, ch. 308, §4, 43 Stat. 971, provided for certification of amounts due States for agricultural experiment stations, for withholding certificate, and for redress by Congress. See section 361g of this title.
Statutory Notes and Related Subsidiaries
Existing Rights and Liabilities
Any rights or liabilities existing under sections 369 to 376 as unaffected by repeal, see section 2 of act Aug. 11, 1955, set out as a note under former section 361 of this title.
§§377 to 379. Transferred
Editorial Notes
Codification
Section 377, act Mar. 2, 1887, ch. 314, §6, 24 Stat. 441, as amended, was transferred to section 361f of this title. For provisions of section 377 which related to unexpended part of annual appropriations, see section 361g of this title.
Section 378, act Mar. 2, 1887, ch. 314, §8, 24 Stat. 441, as amended, was transferred to section 361h of this title.
Section 379, act Mar. 2, 1887, ch. 314, §7, 24 Stat. 441, as amended, was transferred to section 361g of this title. For provisions of section 379 which provided that the relation of the college to the State was unaffected, see section 361h of this title.
§380. Repealed. Aug. 11, 1955, ch. 790, §2, 69 Stat. 674
Section, acts Mar. 16, 1906, ch. 951, §5, 34 Stat. 64; Feb. 24, 1925, ch. 308, §5, 43 Stat. 972, provided for an annual report to Congress. See section 361g of this title.
Statutory Notes and Related Subsidiaries
Existing Rights and Liabilities
Any rights or liabilities existing under this section as unaffected by repeal, see section 2 of act Aug. 11, 1955, set out as a note under former section 361 of this title.
§381. Omitted
Editorial Notes
Codification
Section was from act Mar. 2, 1901, ch. 805, 31 Stat. 935, the Agricultural Appropriation Act, 1902, and authorized the Secretary of Agriculture to employ personnel and to incur administrative expenses in carrying out the objects of the agricultural experiment station program. See section 361g of this title. Similar provisions were contained in several prior appropriation acts.
§§382, 383. Repealed. Aug. 11, 1955, ch. 790, §2, 69 Stat. 674, 675
Section 382, acts Mar. 16, 1906, ch. 951, §6, 34 Stat. 64; Feb. 24, 1925, ch. 308, §6, 43 Stat. 972, reserved the right to Congress to amend, suspend or repeal any and all of the provisions of act Mar. 16, 1906. See section 361i of this title.
Section 383, act Oct. 1, 1918, ch. 178, 40 Stat. 998, authorized appropriations for the Georgia Experiment Station. See section 361c of this title.
Statutory Notes and Related Subsidiaries
Existing Rights and Liabilities
Any rights or liabilities existing under these sections as unaffected by repeal, see section 2 of act Aug. 11, 1955, set out as a note under former section 361 of this title.
§384. Card index of agricultural literature; copies to be furnished by Secretary
The Secretary of Agriculture may furnish to such institutions or individuals as may care to buy them copies of the card index of agricultural literature prepared by the Department of Agriculture in connection with its administration of the Act of March second, eighteen hundred and eighty-seven [7 U.S.C. 361a et seq.], and the Act of March sixteenth, nineteen hundred and six, and the Acts amendatory of and supplementary thereto, and charge for the same a price covering the additional expenses involved in the preparation of these copies, the money received from such sales to be deposited in the Treasury of the United States as miscellaneous receipts.
(Mar. 4, 1915, ch. 144, 38 Stat. 1109.)
Editorial Notes
References in Text
The Act of March second, eighteen hundred and eighty-seven, referred to in text, is act Mar. 2, 1887, ch. 314, 24 Stat. 440, popularly known as the Hatch Act of 1887, which is classified generally to sections 361a to 361i of this title. For complete classification of this Act to the Code, see Short Title note set out under section 361a of this title and Tables.
The Act of March sixteenth, nineteen hundred and six, referred to in text, means act Mar. 16, 1906, ch. 951, 34 Stat. 63, known as the Adams Act of 1906, which was classified to sections 361, 366, 369, 371, 373 to 376, 380, and 382 of this title, and was repealed by act Aug. 11, 1955, ch. 790, §2, 69 Stat. 674. For complete classification of this Act to the Code prior to repeal, see Tables.
Executive Documents
Transfer of Functions
Functions of all officers, agencies, and employees of Department of Agriculture transferred, with certain exceptions, to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
§385. South Carolina Experiment Station; cooperation by Secretary of Agriculture; lump sum appropriation
There is authorized to be appropriated the sum of $50,000 to enable the Secretary of Agriculture to cooperate with the South Carolina Agricultural Experiment Station and/or other agencies in making investigations and experiments in dairying and livestock industries and of the problems pertaining to the establishment and development of such industries, including cropping systems, soil improvement, and farm organization studies of such industries, and for demonstration, assistance, and service in developing the agriculture of the Sand Hill region of the Southeast.
(Mar. 3, 1927, ch. 367, §1, 44 Stat. 1397.)
§385a. Authorization of appropriations
There is authorized to be appropriated each fiscal year necessary appropriations to enable the Secretary of Agriculture to carry on the cooperative experiments contemplated by section 385 of this title.
(Mar. 3, 1927, ch. 367, §2, as added Feb. 4, 1928, ch. 24, 45 Stat. 57.)
§§386 to 386f. Repealed. Aug. 11, 1955, ch. 790, §2, 69 Stat. 674
Sections 386 to 386b, act May 16, 1928, ch. 575, §§1–3, 45 Stat. 571, 572, provided for establishment of an experiment station in Hawaii, authorized appropriations and an increase in permanent annual appropriations. See sections 361a and 361c of this title.
Section 386c, act Feb. 23, 1929, ch. 299, 45 Stat. 1256, extended provisions of agricultural experiment station program to Alaska. See section 361a of this title.
Sections 386d to 386f, acts Mar. 4, 1931, ch. 499, §§1–3, 46 Stat. 1520, 1521; May 17, 1932, ch. 190, 47 Stat. 158, provided for establishment of an experiment station in Puerto Rico, authorized appropriations and an increase in permanent annual appropriations. See sections 361a and 361c of this title.
Statutory Notes and Related Subsidiaries
Existing Rights and Liabilities
Any rights or liabilities existing under sections 386 to 386f as unaffected by repeal, see section 2 of act Aug. 11, 1955, set out as a note under former section 361 of this title.
§386g. Repealed. Oct. 31, 1951, ch. 654, §1(10), 65 Stat. 701
Section, act July 7, 1932, ch. 443, §1, 47 Stat. 614, related to transfer or sale of property of Alaska, Guam, and Virgin Islands stations.
SUBCHAPTER II—EXPERIMENT STATIONS FOR PROPAGATION OF TREES, SHRUBS, VINES, AND VEGETABLES
§387. Station for semi-arid or dry-land regions; establishment
The Secretary of Agriculture is authorized and directed to cause such shade, ornamental, fruit, and shelter-belt trees, shrubs, vines, and vegetables as are adapted to the conditions and needs of the semi-arid or dry-land regions of the United States, to be propagated at an experiment station of the Department of Agriculture to be established at or near Cheyenne, Wyoming, and seedlings and cuttings and seeds of such trees, shrubs, vines, and vegetables to be distributed free of charge under such regulations as he may prescribe for experimental and demonstration purposes within the semi-arid or dry-land regions of the United States.
(Mar. 19, 1928, ch. 228, §1, 45 Stat. 323.)
Executive Documents
Transfer of Functions
All functions of all officers, agencies and employees of the Department of Agriculture were transferred, with certain exceptions, to the Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
§387a. Authorization of appropriations
There is authorized to be appropriated each fiscal year necessary appropriations to enable the Secretary of Agriculture to carry on the experiments contemplated by section 387 of this title.
(Mar. 19, 1928, ch. 228, §3, 45 Stat. 323.)
§388. Station for southern Great Plains area; establishment
The Secretary of Agriculture is authorized and directed to cause such shade, ornamental, fruit, and shelter-belt trees, shrubs, and vines as are adapted to the conditions and needs of the southern Great Plains area, comprised of those parts of the States of Colorado, Nebraska, Kansas, Texas, Oklahoma, and New Mexico lying west of the ninety-eighth meridian and east of the five thousand-foot contour line, to be propagated at one of the existing field stations of the Department of Agriculture in such area, and seedlings and cuttings and seeds of such trees, shrubs, and vines to be distributed free of charge under such regulations as he may prescribe for experimental and demonstration purposes within such area.
(Apr. 16, 1928, ch. 377, §1, 45 Stat. 430.)
Executive Documents
Transfer of Functions
Functions of all officers, agencies, and employees of Department of Agriculture transferred, with certain exceptions, to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
§388a. Authorization of appropriations
There is authorized to be appropriated each fiscal year necessary appropriations to enable the Secretary of Agriculture to carry on the experiments contemplated by section 388 of this title.
(Apr. 16, 1928, ch. 377, §3, 45 Stat. 431.)
§389. Transfer of certain dry land and irrigation field stations to States
The Secretary of Agriculture is authorized, at such times as he deems appropriate, to convey by appropriate conveyances, without consideration, the interest of the United States in the lands, including water rights, buildings, and improvements presently comprising or appurtenant to the following dry land and irrigation field stations, to the States in which such stations are located, when, in the opinion of the Secretary of Agriculture, the transfer of any such station will result in establishing a more effective program in the cooperative agricultural experimental work of the Department of Agriculture and the respective State and the furtherance of agricultural experimental work on a national or regional basis will be better served by such transfer: Huntley, Montana; Mitchell, Nebraska; Fallon, Nevada; Tucumcari, New Mexico; Hermiston, Oregon; Sheridan, Wyoming: Provided, That when any or all of the land, including water rights, comprising any such station is public-domain land, only the Secretary of the Interior may by patent or other appropriate conveyance transfer such lands to the respective States: Provided further, That when any easement necessary to a station conveyed or patented hereunder is on public-domain lands, only the Secretary of the Interior may grant such easements to the State to which the station has been conveyed.
(Sept. 23, 1950, ch. 1005, §1, 64 Stat. 981.)
Executive Documents
Transfer of Functions
Functions of all officers, agencies, and employees of Department of Agriculture transferred, with certain exceptions, to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
§389a. Conditions of transfer of dry land and irrigation field stations; reservation of mineral rights
Conveyances or patents under this section and section 389 of this title shall be upon such conditions as in the opinion of the Secretary of Agriculture will assure the use of such station in the cooperative agricultural experimental work of the Department of Agriculture and the respective State. Any such conveyances of the land shall contain a reservation to the United States of all the minerals in the land together with the right to prospect for, mine, and remove the same under such regulations as the Secretary of the Interior may prescribe.
(Sept. 23, 1950, ch. 1005, §2, 64 Stat. 982.)
Executive Documents
Transfer of Functions
Functions of all officers, agencies, and employees of Department of Agriculture transferred, with certain exceptions, to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
SUBCHAPTER III—RESEARCH FACILITIES
§390. Definitions
In this subchapter:
(1) Agricultural research facility
The term "agricultural research facility" means a proposed facility for research in food and agricultural sciences for which Federal funds are requested by an entity eligible to receive funds under a capacity and infrastructure program (as defined in section 6971(f)(1)(C) of this title) to assist in the construction, alteration, acquisition, modernization, renovation, or remodeling of the facility.
(2) Congressional agriculture committees
The term "congressional agriculture committees" means the Committee on Appropriations and the Committee on Agriculture of the House of Representatives and the Committee on Appropriations and the Committee on Agriculture, Nutrition, and Forestry of the Senate.
(3) Food and agricultural sciences
The term "food and agricultural sciences" has the meaning given that term in section 3103 of this title.
(4) Secretary
The term "Secretary" means the Secretary of Agriculture.
(Pub. L. 88–74, §2, as added Pub. L. 104–127, title VIII, §884(a), Apr. 4, 1996, 110 Stat. 1176; amended Pub. L. 107–171, title VII, §§7214, 7308(b), May 13, 2002, 116 Stat. 448, 455; Pub. L. 110–234, title VII, §7101(b)(1), May 22, 2008, 122 Stat. 1213; Pub. L. 110–246, §4(a), title VII, §7101(b)(1), June 18, 2008, 122 Stat. 1664, 1974; Pub. L. 115–334, title VII, §7503(a)(1), Dec. 20, 2018, 132 Stat. 4821.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Prior Provisions
A prior section 390, Pub. L. 88–74, §1, July 22, 1963, 77 Stat. 90; Pub. L. 95–113, title XIV, §1416(3), Sept. 29, 1977, 91 Stat. 996; Pub. L. 99–198, title XIV, §1411(a), Dec. 23, 1985, 99 Stat. 1547, related to congressional declaration of policy, prior to the general amendment of this subchapter by Pub. L. 104–127.
A prior section 2 of Pub. L. 88–74 was classified to section 390a of this title prior to the general amendment of this subchapter by Pub. L. 104–127.
Amendments
2018—Par. (1). Pub. L. 115–334 substituted "an entity eligible to receive funds under a capacity and infrastructure program (as defined in section 6971(f)(1)(C) of this title)" for "a college, university, or nonprofit institution".
2008—Par. (3). Pub. L. 110–246, §7101(b)(1), substituted "3103" for "3103(8)".
2002—Par. (3). Pub. L. 107–171, §7214, reenacted heading without change and amended text of par. (3) generally. Prior to amendment, text read as follows: "The term 'food and agricultural sciences' means—
"(A) agriculture, including soil and water conservation and use, the use of organic materials to improve soil tilth and fertility, plant and animal production and protection, and plant and animal health;
"(B) the processing, distribution, marketing, and utilization of food and agricultural products;
"(C) forestry, including range management, production of forest and range products, multiple use of forests and rangelands, and urban forestry;
"(D) aquaculture (as defined in section 3103(3) of this title);
"(E) human nutrition;
"(F) production inputs, such as energy, to improve productivity; and
"(G) germ plasm collection and preservation."
Par. (5). Pub. L. 107–171, §7308(b), struck out heading and text of par. (5). Text read as follows: "The term 'task force' means the Strategic Planning Task Force established under section 390b of this title."
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Effective Date
Pub. L. 104–127, title VIII, §884(b), Apr. 4, 1996, 110 Stat. 1179, provided that: "The amendment made by subsection (a) [enacting this subchapter], other than section 4 of the Research Facilities Act [section 390b of this title] (as amended by subsection (a)), shall not apply to any project for an agricultural research facility for which funds have been made available for a feasibility study or for any phase of the project prior to October 1, 1995."
Short Title
Pub. L. 88–74, §1, as added by Pub. L. 104–127, title VIII, §884(a), Apr. 4, 1996, 110 Stat. 1176, provided that: "This Act [enacting this subchapter] may be cited as the 'Research Facilities Act'."
§390a. Review process
(a) Submission to Secretary
Each proposal for an agricultural research facility shall be submitted to the Secretary for review. The Secretary shall review the proposals in the order in which the proposals are received.
(b) Application process
In consultation with the congressional agriculture committees, the Secretary shall establish an application process for the submission of proposals for agricultural research facilities.
(c) Criteria for approval
(1) Determination by Secretary
With respect to each proposal for an agricultural research facility submitted under subsection (a), the Secretary shall determine whether the proposal meets the criteria set forth in paragraph (2).
(2) Criteria
A proposal for an agricultural research facility shall meet the following criteria:
(A) Non-Federal share
The proposal shall certify the availability of at least a 50 percent non-Federal share of the cost of the facility. The non-Federal share shall be paid in cash and may include funding from private sources or from units of State or local government.
(B) Nonduplication of facilities
The proposal shall demonstrate how the agricultural research facility would be complementary to, and not duplicative of, facilities of colleges, universities, and nonprofit institutions, and facilities of the Agricultural Research Service, within the State and region.
(C) National research priorities
The proposal shall demonstrate how the agricultural research facility would serve—
(i) 1 or more of the national research policies and priorities set forth in section 3101 of this title; and
(ii) national or multistate needs.
(D) Long-term support
The proposal shall demonstrate that the recipient entity has the ability and commitment to support the long-term, ongoing operating and maintenance costs of—
(i) the agricultural research facility after the facility is completed; and
(ii) each program to be based at the facility.
(d) Evaluation of proposals
Not later than 90 days after receiving a proposal under subsection (a), the Secretary shall—
(1) evaluate and assess the merits of the proposal, including the extent to which the proposal meets the criteria set forth in subsection (c); and
(2) report to the congressional agriculture committees on the results of the evaluation and assessment.
(e) National or multistate needs served by ARS facilities
The Secretary shall ensure that each research activity conducted by a facility of the Agricultural Research Service serves a national or multistate need.
(Pub. L. 88–74, §3, as added Pub. L. 104–127, title VIII, §884(a), Apr. 4, 1996, 110 Stat. 1177; amended Pub. L. 105–185, title I, §106(a), (b), June 23, 1998, 112 Stat. 530; Pub. L. 115–334, title VII, §7503(a)(2), (b), Dec. 20, 2018, 132 Stat. 4821.)
Editorial Notes
Prior Provisions
A prior section 390a, Pub. L. 88–74, §2, July 22, 1963, 77 Stat. 90; Pub. L. 95–113, title XIV, §1416(3), Sept. 29, 1977, 91 Stat. 996; Pub. L. 99–198, title XIV, §1411(b), Dec. 23, 1985, 99 Stat. 1547, related to congressional declaration of purpose, prior to the general amendment of this subchapter by Pub. L. 104–127.
A prior section 3 of Pub. L. 88–74 was classified to section 390b of this title prior to the general amendment of this subchapter by Pub. L. 104–127.
Amendments
2018—Subsec. (c)(2)(D). Pub. L. 115–334, in introductory provisions, substituted "recipient entity" for "recipient college, university, or nonprofit institution" and "operating and maintenance costs" for "operating costs".
1998—Subsec. (c)(2)(C)(ii). Pub. L. 105–185, §106(a), substituted "national or multistate needs" for "regional needs".
Subsec. (e). Pub. L. 105–185, §106(b), added subsec. (e).
§390b. Competitive grant program
The Secretary shall establish a program to make competitive grants to assist in the construction, alteration, acquisition, modernization, renovation, or remodeling of agricultural research facilities.
(Pub. L. 88–74, §4, as added Pub. L. 115–334, title VII, §7503(c), Dec. 20, 2018, 132 Stat. 4821.)
Editorial Notes
Prior Provisions
A prior section 390b, Pub. L. 88–74, §4, as added Pub. L. 104–127, title VIII, §884(a), Apr. 4, 1996, 110 Stat. 1178; amended Pub. L. 105–185, title I, §106(c), (d), June 23, 1998, 112 Stat. 530, related to task force on 10–year strategic plan for agricultural research facilities, prior to repeal by Pub. L. 107–171, title VII, §7308(a), May 13, 2002, 116 Stat. 455.
Another prior section 390b, Pub. L. 88–74, §3, July 22, 1963, 77 Stat. 90; Pub. L. 95–113, title XIV, §1416(1), Sept. 29, 1977, 91 Stat. 994; Pub. L. 99–198, title XIV, §1411(c), Dec. 23, 1985, 99 Stat. 1547, related to definitions, prior to the general amendment of this subchapter by Pub. L. 104–127.
A prior section 4 of Pub. L. 88–74 was classified to section 390c of this title prior to the general amendment of this subchapter by Pub. L. 104–127.
§390c. Applicability of chapter 10 of title 5
Chapter 10 of title 5 and title XVIII of the Food and Agriculture Act of 1977 (7 U.S.C. 2281 et seq.) shall not apply to a panel or board created solely for the purpose of reviewing applications or proposals submitted under this subchapter.
(Pub. L. 88–74, §5, as added Pub. L. 104–127, title VIII, §884(a), Apr. 4, 1996, 110 Stat. 1179; amended Pub. L. 117–286, §4(a)(22), Dec. 27, 2022, 136 Stat. 4307.)
Editorial Notes
References in Text
The Food and Agriculture Act of 1977, referred to in text, is Pub. L. 95–113, Sept. 29, 1977, 91 Stat. 913. Title XVIII of the Act is classified generally to chapter 55A (§2281 et seq.) of this title. For complete classification of this Act to the Code, see Short Title of 1977 Amendment note set out under section 1281 of this title and Tables.
Prior Provisions
A prior section 390c, Pub. L. 88–74, §4, July 22, 1963, 77 Stat. 91; Pub. L. 95–113, title XIV, §1416(2), Sept. 29, 1977, 91 Stat. 994; Pub. L. 97–98, title XIV, §1416, Dec. 22, 1981, 95 Stat. 1304; Pub. L. 99–198, title XIV, §1411(d), Dec. 23, 1985, 99 Stat. 1548; Pub. L. 101–624, title XVI, §1601(a), Nov. 28, 1990, 104 Stat. 3703, related to appropriations and administrative authority, prior to the general amendment of this subchapter by Pub. L. 104–127.
A prior section 5 of Pub. L. 88–74 was classified to section 390d of this title prior to the general amendment of this subchapter by Pub. L. 104–127.
Amendments
2022—Pub. L. 117–286 substituted "chapter 10 of title 5" for "Federal Advisory Committee Act" in section catchline and "Chapter 10 of title 5" for "The Federal Advisory Committee Act (5 U.S.C. App.)" in text.
§390d. Authorization of appropriations
(a) In general
Subject to subsections (b), (c), and (d), there are authorized to be appropriated such sums as are necessary for each of fiscal years 1996 through 2023 for the study, plan, design, structure, and related costs of agricultural research facilities under this subchapter. Funds appropriated pursuant to the preceding sentence shall be available until expended.
(b) Allowable administrative costs
Not more than 3 percent of the funds made available for any project for an agricultural research facility shall be available for administration of the project.
(c) Maximum amount
Not more than 25 percent of the funds made available pursuant to subsection (a) for any fiscal year shall be used for any single agricultural research facility project.
(d) Project limitation
An entity eligible to receive funds under this subchapter may receive funds for only one project at a time.
(Pub. L. 88–74, §6, as added Pub. L. 104–127, title VIII, §884(a), Apr. 4, 1996, 110 Stat. 1179; amended Pub. L. 105–185, title III, §301(d), June 23, 1998, 112 Stat. 563; Pub. L. 107–171, title VII, §7135, May 13, 2002, 116 Stat. 436; Pub. L. 110–234, title VII, §7405, May 22, 2008, 122 Stat. 1247; Pub. L. 110–246, §4(a), title VII, §7405, June 18, 2008, 122 Stat. 1664, 2008; Pub. L. 113–79, title VII, §7403, Feb. 7, 2014, 128 Stat. 895; Pub. L. 115–334, title VII, §7503(d), Dec. 20, 2018, 132 Stat. 4821.)
Editorial Notes
Codification
The authorities provided by each provision of, and each amendment made by, Pub. L. 115–334, as in effect on Sept. 30, 2023, to continue, and authorities to be carried out, until the later of Sept. 30, 2024, or the date specified in the provision of, or amendment made by, Pub. L. 115–334, see section 102(a) of Pub. L. 118–22, set out in an Extension of Agricultural Programs note under section 9001 of this title.
The authorities provided by each provision of, and each amendment made by, Pub. L. 110–246, as in effect on Sept. 30, 2012, to continue, and the Secretary of Agriculture to carry out the authorities, until the later of Sept. 30, 2013, or the date specified in the provision of, or amendment made by, Pub. L. 110–246, see section 701(a) of Pub. L. 112–240, set out in a 1-Year Extension of Agricultural Programs note under section 8701 of this title.
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Prior Provisions
A prior section 390d, Pub. L. 88–74, §5, July 22, 1963, 77 Stat. 91; Pub. L. 95–113, title XIV, §1416(2), Sept. 29, 1977, 91 Stat. 995; Pub. L. 99–198, title XIV, §1411(e), Dec. 23, 1985, 99 Stat. 1548, related to payment eligibility and facility proposals, prior to the general amendment of this subchapter by Pub. L. 104–127.
A prior section 6 of Pub. L. 88–74 was classified to section 390f of this title prior to the general amendment of this subchapter by Pub. L. 104–127.
Another prior section 6 of Pub. L. 88–74 was classified to section 390e of this title prior to repeal by Pub. L. 99–198.
A prior section 390e, Pub. L. 88–74, §6, July 22, 1963, 77 Stat. 91; Pub. L. 95–113, title XIV, §1416(2), Sept. 29, 1977, 91 Stat. 995, related to continuing availability of unused allotments to eligible institutions for a period of five fiscal years following the fiscal year of initial availability thereof, prior to repeal by Pub. L. 99–198, title XIV, §1411(f), Dec. 23, 1985, 99 Stat. 1548.
A prior section 390f, Pub. L. 88–74, §6, formerly §7, July 22, 1963, 77 Stat. 91; Pub. L. 95–113, title XIV, §1416(2), Sept. 29, 1977, 91 Stat. 995; renumbered §6 and amended Pub. L. 99–198, title XIV, §1411(g), (k), Dec. 23, 1985, 99 Stat. 1548, related to fund support basis for multiple-purpose equipment and physical facilities, prior to the general amendment of this subchapter by Pub. L. 104–127.
A prior section 390g, Pub. L. 88–74, §8, July 22, 1963, 77 Stat. 91; Pub. L. 95–113, title XIV, §1416(2), Sept. 29, 1977, 91 Stat. 995, related to ascertainment of the amount of the allocation to which each institution was entitled and written notification to each such institution, prior to repeal by Pub. L. 99–198, title XIV, §1411(h), Dec. 23, 1985, 99 Stat. 1548.
A prior section 390h, Pub. L. 88–74, §7, formerly §9, July 22, 1963, 77 Stat. 91; Pub. L. 94–273, §7(1), Apr. 21, 1976, 90 Stat. 378; Pub. L. 95–113, title XIV, §1416(2), Sept. 29, 1977, 91 Stat. 995; renumbered §7 and amended Pub. L. 99–198, title XIV, §1411(i), (k), Dec. 23, 1985, 99 Stat. 1548, related to fiscal accountability, prior to the general amendment of this subchapter by Pub. L. 104–127.
A prior section 390i, Pub. L. 88–74, §8, formerly §10, July 22, 1963, 77 Stat. 92; Pub. L. 95–113, title XIV, §1416(2), Sept. 29, 1977, 91 Stat. 995; renumbered §8 and amended Pub. L. 99–198, title XIV, §1411(j), (k), Dec. 23, 1985, 99 Stat. 1548, directed Secretary to submit annual reports to Congress with respect to research facility payments, prior to repeal by Pub. L. 104–66, title I, §1011(w), Dec. 21, 1995, 109 Stat. 711.
A prior section 8 of Pub. L. 88–74 was classified to section 390g of this title prior to repeal by Pub. L. 99–198.
A prior section 390j, Pub. L. 88–74, §9, formerly §11, July 22, 1963, 77 Stat. 92; Pub. L. 95–113, title XIV, §1416(2), Sept. 29, 1977, 91 Stat. 995; renumbered §9, Pub. L. 99–198, title XIV, §1411(k), Dec. 23, 1985, 99 Stat. 1548, related to availability of appropriated funds for administration, prior to the general amendment of this subchapter by Pub. L. 104–127.
A prior section 9 of Pub. L. 88–74 was renumbered section 7 and was classified to section 390h of this title, prior to the general amendment of this subchapter by Pub. L. 104–127.
A prior section 390k, Pub. L. 88–74, §12, July 22, 1963, 77 Stat. 92, authorized appropriation of such sums as might be necessary for proper administration of this subchapter, prior to repeal by Pub. L. 95–113, title XIV, §1416(2), Sept. 29, 1977, 91 Stat. 994, effective Oct. 1, 1977.
Amendments
2018—Subsec. (a). Pub. L. 115–334, §7503(d)(1), substituted "subsections (b), (c), and (d)," for "subsection (b)," and "2023" for "2018" and inserted at end "Funds appropriated pursuant to the preceding sentence shall be available until expended."
Subsecs. (c), (d). Pub. L. 115–334, §7503(d)(2), added subsecs. (c) and (d).
2014—Subsec. (a). Pub. L. 113–79 substituted "2018" for "2012".
2008—Subsec. (a). Pub. L. 110–246, §7405, substituted "2012" for "2007".
2002—Subsec. (a). Pub. L. 107–171 substituted "2007" for "2002".
1998—Subsec. (a). Pub. L. 105–185 substituted "each of fiscal years 1996 through 2002" for "fiscal years 1996 and 1997".
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
CHAPTER 15—BUREAU OF ANIMAL INDUSTRY
§391. Establishment of bureau; appointment of chief; duties
There shall be in the Department of Agriculture a Bureau of Animal Industry. The Secretary of Agriculture is authorized to appoint a chief thereof, who shall be a competent veterinary surgeon, and whose duty it shall be to investigate and report upon the condition of the domestic animals and live poultry of the United States, their protection and use, and also inquire into and report the causes of contagious, infectious, and communicable diseases among them, and the means for the prevention and cure of the same, and to collect such information on these subjects as shall be valuable to the agricultural and commercial interests of the country.
(May 29, 1884, ch. 60, §1, 23 Stat. 31; July 14, 1890, ch. 707, 26 Stat. 288; Feb. 7, 1928, ch. 30, 45 Stat. 59.)
Editorial Notes
Codification
Section is composed of part of section 1 of act May 29, 1884.
Section 1 of that act as originally enacted contained this further provision: "And the Commissioner of Agriculture is hereby authorized to employ a force sufficient for the purpose, not to exceed 20 persons at any one time." This provision was practically superseded by subsequent appropriations for an enlarged force.
Section 1 also contained a provision as to salary of the Chief of the Bureau and a clerk for said bureau, that has been omitted as obsolete. The salaries are now fixed under chapter 51 and subchapter III of chapter 53 of Title 5, Government Organization and Employees.
Amendments
1928—Joint Res. Feb. 7, 1928, inserted "and live poultry" after "domestic animals".
Executive Documents
Transfer of Functions
Section 301 of 1947 Reorg. Plan No. 1, eff. July 1, 1947, 12 F.R. 4534, 61 Stat. 952, provided: "The functions of the following agencies of the Department of Agriculture, namely, the Bureau of Animal Industry, the Bureau of Dairy Industry, the Bureau of Plant Industry, Soils, and Agricultural Engineering, the Bureau of Entomology and Plant Quarantine, the Bureau of Agricultural and Industrial Chemistry, the Bureau of Human Nutrition and Home Economics, the Office of Experiment Stations, and the Agricultural Research Center, together with the functions of the Agricultural Research Administrator, are transferred to the Secretary of Agriculture and shall be performed by the Secretary or, subject to his direction and control, by such officers and agencies of the Department of Agriculture as he may designate." For provisions concerning transfer of records, property, personnel, and funds, see full text of this Plan, set out in the Appendix to Title 5, Government Organization and Employees.
The President's message, set out in the Appendix to Title 5, Government Organization and Employees, transmitting this Reorg. Plan to Congress pointed out that the Plan would make it possible to continue the consolidation of the agencies concerned in the Agricultural Research Administration which was affected on a temporary wartime basis by Ex. Ord. No. 9069, Feb. 23, 1942, 7 F.R. 1409, and to make further adjustments in the organization of agricultural research activities.
Functions of Bureau of Animal Industry which were transferred to Secretary of Agriculture were transferred to Agricultural Research Service under Secretary's memorandum 1320, supp. 4, of Nov. 2, 1953.
As of July 1, 1927, by order of the Secretary of Agriculture, the Packers and Stockyards administration was abolished, and the enforcement of the Packers and Stockyards Act of 1921, section 181 et seq. of this title, put under the control of the chief of the Bureau of Animal Industry.
Authority formerly granted to Commissioner of Agriculture by section 1 of act of May 29, 1884, vested in Secretary of Agriculture by act July 14, 1890. See also sections 2202 and 2205 of this title.
Functions of Bureau of Animal Industry of Agricultural Research Administration concerned primarily with regulatory activities consolidated with other agencies into Food Distribution Administration, which was consolidated into War Food Administration, which was terminated and its functions transferred to Secretary of Agriculture, by Ex. Ord. No. 9577.
§392. Repealed. Oct. 31, 1951, ch. 654, §1(11), 65 Stat. 701
Section, act Aug. 10, 1912, ch. 284, 37 Stat. 274, related to sale or exchange of animals not needed.
§393. Sale of pathological and zoological specimens; disposition of moneys
The Secretary of Agriculture is authorized to prepare and sell at cost such pathological and zoological specimens as he may deem of scientific or educational value to scientists or others engaged in the work of hygiene and sanitation: Provided, That all moneys received from the sale of such specimens shall be deposited in the Treasury as miscellaneous receipts.
(Mar. 4, 1913, ch. 145, §1 [part], 37 Stat. 833.)
Executive Documents
Transfer of Functions
Functions of Bureau of Animal Industry transferred to Secretary of Agriculture by 1947 Reorg. Plan No. 1, §301, eff. July 1, 1947, 12 F.R. 4534, 61 Stat. 952. See note set out under section 391 of this title.
§394. Repealed. Pub. L. 107–171, title X, §10703(c)(3), May 13, 2002, 116 Stat. 518
Section, act July 24, 1919, ch. 26, 41 Stat. 241, related to overtime of employees engaged in enforcement of Meat Inspection Act.
§394a. Overtime of employees working at establishments which prepare virus, serum, toxin, and analogous products
The Secretary of Agriculture is authorized to pay employees of the Bureau of Animal Industry employed in establishments subject to the provisions of section 157 of title 21, for all overtime, night, or holiday work performed at such establishments, at such rates as he may determine, and to accept from such establishments wherein such overtime work is performed reimbursement for any sums paid out by him for such overtime work.
(Aug. 4, 1949, ch. 392, 63 Stat. 495.)
Executive Documents
Transfer of Functions
Functions of Bureau of Animal Industry transferred to Secretary of Agriculture by 1947 Reorg. Plan No. 1, §301, eff. July 1, 1947, 12 F.R. 4534, 61 Stat. 952. See note set out under section 391 of this title.
§395. Fees for rabies diagnoses; disposition of moneys
Fees shall be charged for all diagnoses in connection with rabies, except those performed for agencies of the United States Government, in such amounts as the Secretary shall prescribe, and such fees shall be covered into the Treasury as miscellaneous receipts.
(Sept. 21, 1944, ch. 412, title I, §101(e), 58 Stat. 734.)
Editorial Notes
Prior Provisions
Provisions similar to those in this section were contained in the following prior Department of Agriculture Appropriation Acts:
June 28, 1944, ch. 296, 58 Stat. 433.
July 12, 1943, ch. 215, 57 Stat. 401.
July 22, 1942, ch. 516, 56 Stat. 674.
Statutory Notes and Related Subsidiaries
Authorization of Appropriation
Act Sept. 21, 1944, ch. 412, title I, §101(g), 58 Stat. 735, provided that: "There are hereby authorized to be appropriated for the purposes of this section [enacting this section, sections 396 and 398 of this title, former section 429 of this title, section 626 of Title 21, Food and Drugs, and former section 114a of Title 21] such sums as the Congress may from time to time determine to be necessary."
§396. Inspection of livestock, hides, animal products, etc.; place; charges; disposition of funds
The Secretary of Agriculture upon application of any exporter, importer, packer, or owner of, or the agent thereof, or dealer in, livestock, hides, skins, meat, or other animal products may, in his discretion, cause to be made inspections and examinations at places other than the headquarters of inspectors for the convenience of said applicants, who may be charged for the expenses of travel and subsistence incurred for such inspections and examinations, the funds derived from such charges to be deposited in the Treasury of the United States to the credit of the appropriation from which the expenses are paid.
(Sept. 21, 1944, ch. 412, title I, §101(c), 58 Stat. 734.)
Editorial Notes
Codification
Section was formerly classified to section 228a of this title.
Prior Provisions
Provisions similar to those in this section were carried in the following prior Department of Agriculture Appropriation Acts:
June 28, 1944, ch. 296, 58 Stat. 433.
July 12, 1943, ch. 215, 57 Stat. 400.
July 22, 1942, ch. 516, 56 Stat. 673.
July 1, 1941, ch. 267, 55 Stat. 415.
June 25, 1940, ch. 421, 54 Stat. 539.
June 30, 1939, ch. 253, title I, 53 Stat. 948.
June 16, 1938, ch. 464, title I, 52 Stat. 719.
June 29, 1937, ch. 404, 50 Stat. 403.
June 4, 1936, ch. 489, 49 Stat. 1429.
Statutory Notes and Related Subsidiaries
Authorization of Appropriation
Authorization of appropriation of sums necessary for the purposes of this section, see note under section 395 of this title.
§397. Omitted
Editorial Notes
Codification
Section, acts Aug. 28, 1954, ch. 1041, title II, §204(e), 68 Stat. 900; Apr. 2, 1956, ch. 159, §2, 70 Stat. 87, authorized transfer of Commodity Credit Corporation funds not to exceed $17,000,000 for fiscal year ending June 30, 1956 and not to exceed $20,000,000 for each of fiscal years 1957 and 1958 for brucellosis eradication, indemnification for destroyed cattle and administrative expenses and authorized appropriations to reimburse the Commodity Credit Corporation for the expenditures.
§398. Purchase and testing of serums or analogous products; dissemination of test results
The Secretary of Agriculture may purchase in the open market from applicable appropriations samples of all tuberculin, serums, antitoxins, or analogous products, of foreign or domestic manufacture, which are sold in the United States, for the detection, prevention, treatment, or cure of diseases of domestic animals, test the same, and disseminate the results of said tests in such manner as he may deem best.
(Sept. 21, 1944, ch. 412, title I, §101(d), 58 Stat. 734.)
Editorial Notes
Codification
Section was formerly classified to section 430 of this title prior to editorial reclassification and renumbering as this section.
Statutory Notes and Related Subsidiaries
Authorization of Appropriation
Authorization of appropriation of sums necessary for the purposes of this section, see note under section 395 of this title.
§399. Domestic raising of fur-bearing animals; classification
For the purposes of all classification and administration of Acts of Congress, Executive orders, administrative orders, and regulations pertaining to—
(a) fox, rabbit, mink, chinchilla, marten, fisher, muskrat, karakul and all other fur-bearing animals, raised in captivity for breeding or other useful purposes shall be deemed domestic animals;
(b) such animals and the products thereof shall be deemed agricultural products; and
(c) the breeding, raising, producing, or marketing of such animals or their products by the producer shall be deemed an agricultural pursuit.
(Apr. 30, 1946, ch. 242, §1, 60 Stat. 127.)
Editorial Notes
Codification
Section was formerly classified to section 433 of this title prior to editorial reclassification and renumbering as this section.
Statutory Notes and Related Subsidiaries
Effective Date
Act Apr. 30, 1946, ch. 242, §3, 60 Stat. 128, provided that: "This Act [enacting this section and provisions set out as a note below] shall take effect sixty days after the date of its enactment [Apr. 30, 1946]."
Transfer of Functions
Act Apr. 30, 1946, ch. 242, §2, 60 Stat. 127; 1970 Reorg. Plan No. 2, §102, eff. July 1, 1970, 35 F.R. 7959, 84 Stat. 2085, provided that:
"(a) All the functions of the Secretary of the Interior and the Fish and Wildlife Service of the Department of the Interior, which affect the breeding, raising, producing, marketing, or any other phase of the production or distribution, of domestically raised fur-bearing animals, or products thereof, are hereby transferred to and vested in the Secretary of Agriculture.
"(b) Appropriations and unexpended balances of appropriations, or parts thereof, which the Director of the Office of Management and Budget determines to be available for expenditure for the administration of any function transferred by this Act [enacting this section and provisions set out as a note above], shall be available for expenditure for the continued administration of such function by the officer to whom such function is so transferred.
"(c) All records and property (including office furniture and equipment) under the jurisdiction of the Secretary of the Interior and the Fish and Wildlife Service of the Department of the Interior used primarily in connection with the administration of functions transferred by this Act are hereby transferred to the jurisdiction of the Secretary of Agriculture."
[Section 2 of act Apr. 30, 1946, ch. 242, set out above, was formerly classified to section 434 of this title prior to editorial reclassification as this note.]
CHAPTER 16—BUREAU OF DAIRY INDUSTRY
§401. Establishment of bureau
There is established in the Department of Agriculture a bureau to be known as the "Bureau of Dairy Industry."
(May 29, 1924, ch. 208, §1, 43 Stat. 243; May 11, 1926, ch. 286, 44 Stat. 499.)
Statutory Notes and Related Subsidiaries
Change of Name
"Bureau of Dairying" established by act May 29, 1924, designated "Bureau of Dairy Industry" by act May 11, 1926.
Executive Documents
Transfer of Functions
Functions of Bureau of Dairy Industry transferred to Secretary of Agriculture by 1947 Reorg. Plan No. 1, §301, eff. July 1, 1947, 12 F.R. 4534, 61 Stat. 952. See note set out under section 391 of this title.
Bureau of Dairy Industry consolidated with other agencies into Agricultural Research Administration for duration of World War II by Ex. Ord. No. 9069, Feb. 23, 1942, 7 F.R. 1409.
§402. Chief of bureau; appointment and duties
A Chief of the Bureau of Dairy Industry shall be appointed by the Secretary of Agriculture, who shall be subject to the general direction of the Secretary of Agriculture. He shall devote his time to the investigation of the dairy industry, and the dissemination of information for the promotion of the dairy industry.
(May 29, 1924, ch. 208, §2, 43 Stat. 243; May 11, 1926, ch. 286, 44 Stat. 499.)
Statutory Notes and Related Subsidiaries
Change of Name
"Bureau of Dairying" established by act May 29, 1924, designated "Bureau of Dairy Industry" by act May 11, 1926.
Executive Documents
Transfer of Functions
Functions of Bureau of Dairy Industry transferred to Secretary of Agriculture by 1947 Reorg. Plan No. 1, §301, eff. July 1, 1947, 12 F.R. 4534, 61 Stat. 952. See note set out under section 391 of this title.
Bureau of Dairy Industry consolidated with other agencies into Agricultural Research Administration for duration of World War II by Ex. Ord. No. 9069, Feb. 23, 1942, 7 F.R. 1409.
§403. Transfer of activities of Department of Agriculture to bureau; employment of clerks, etc.
For the purpose of enabling the Secretary of Agriculture and the Chief of the Bureau of Dairy Industry to carry out the purposes of this chapter, the Secretary of Agriculture is authorized to transfer to the Bureau of Dairy Industry such activities of the Department of Agriculture as he may designate which relate primarily to the dairy industry, and to employ such additional persons in the city of Washington and elsewhere, as may be necessary.
(May 29, 1924, ch. 208, §3, 43 Stat. 243; May 11, 1926, ch. 286, 44 Stat. 499.)
Statutory Notes and Related Subsidiaries
Change of Name
"Bureau of Dairying" established by act May 29, 1924, designated "Bureau of Dairy Industry" by act May 11, 1926.
Executive Documents
Transfer of Functions
Functions of all officers, agencies, and employees of Department of Agriculture transferred, with certain exceptions, to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
Functions of Bureau of Dairy Industry transferred to Secretary of Agriculture by 1947 Reorg. Plan No. 1, §301, eff. July 1, 1947, 12 F.R. 4534, 61 Stat. 952. See note set out under section 391 of this title.
Bureau of Dairy Industry consolidated with other agencies into Agricultural Research Administration for duration of World War II by Ex. Ord. No. 9069, Feb. 23, 1942, 7 F.R. 1409.
§404. Authorization of appropriations
For the purpose of carrying out the provisions of this chapter and the activities of the Bureau of Dairy Industry, such sums of money as Congress may deem necessary are authorized to be appropriated.
(May 29, 1924, ch. 208, §4, 43 Stat. 243; May 11, 1926, ch. 286, 44 Stat. 499.)
Statutory Notes and Related Subsidiaries
Change of Name
"Bureau of Dairying" established by act May 29, 1924, designated "Bureau of Dairy Industry" by act May 11, 1926.
Executive Documents
Transfer of Functions
Functions of Bureau of Dairy Industry transferred to Secretary of Agriculture by 1947 Reorg. Plan No. 1, §301, eff. July 1, 1947, 12 F.R. 4534, 61 Stat. 952. See note set out under section 391 of this title.
Bureau of Dairy Industry consolidated with other agencies into Agricultural Research Administration for duration of World War II by Ex. Ord. No. 9069, Feb. 23, 1942, 7 F.R. 1409.
CHAPTER 17—MISCELLANEOUS MATTERS
§411. Omitted
Editorial Notes
Codification
Section, act May 11, 1922, ch. 185, 42 Stat. 532, which provided that powers conferred prior to May 11, 1922, and the duties imposed by law on the Bureau of Markets, Bureau of Markets and Crop Estimates, and the Office of Farm Management and Farms Economics of the Department of Agriculture shall be exercised and performed by the Bureau of Agricultural Economics, was omitted from the Code as executed and obsolete.
All functions of all officers, agencies and employees of the Department of Agriculture were transferred, with certain exceptions, to the Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
Functions of the Bureau of Agricultural Economics were transferred to other units of the Department of Agriculture by Secretary's memorandum of November 2, 1953.
Agricultural Statistics Division of the Agricultural Marketing Service and its functions, personnel, property, etc., transferred to Bureau of Agricultural Economics for duration of World War II, see Ex. Ord. No. 9069.
The functions, personnel and property of the Division of Farm Management and Costs of the Bureau of Agricultural Economics concerned primarily with the planning of current agricultural production were consolidated with other agencies into the Food Production Administration, which was consolidated into the War Food Administration, which was terminated and its functions transferred to the Secretary of Agriculture by Ex. Ord. No. 9577.
§411a. Repealed. Pub. L. 101–624, title XXV, §2514(d), Nov. 28, 1990, 104 Stat. 4075
Section, acts Mar. 4, 1909, ch. 301, 35 Stat. 1053; Mar. 4, 1917, ch. 179, 39 Stat. 1157, related to contents, issuance, and approval by Secretary of Agriculture of monthly crop report.
§411b. Transferred
Editorial Notes
Codification
Section 411b was editorially reclassified as section 590a of this title.
§412. Transferred
Editorial Notes
Codification
Section 412 was transferred to section 476 of this title.
§413. Transferred
Editorial Notes
Codification
Section 413 was transferred to section 475 of this title and subsequently repealed.
§414. Repealed. Aug. 9, 1955, ch. 632, §2, 69 Stat. 553
Section, act July 28, 1953, ch. 251, title I, 67 Stat. 217, related to investigation and certification of any agricultural commodity or food product offered for interstate shipment. See section 1622(h) of this title. Similar provisions were contained in the following prior appropriation acts:
July 5, 1952, ch. 574, title I, 66 Stat. 348.
Aug. 31, 1951, ch. 374, title I, 65 Stat. 238.
Sept. 6, 1950, ch. 896, Ch. VI, 64 Stat. 672.
June 29, 1949, ch. 280, title I, 63 Stat. 343.
June 19, 1948, ch. 543, title I, 62 Stat. 527.
July 30, 1947, ch. 356, title I, 61 Stat. 543.
June 22, 1946, ch. 445, 60 Stat. 290.
May 5, 1945, ch. 109, 59 Stat. 158.
June 28, 1944, ch. 296, 58 Stat. 453.
July 12, 1943, ch. 215, 57 Stat. 421.
July 22, 1942, ch. 516, 56 Stat. 687.
July 1, 1941, ch. 267, 55 Stat. 431.
June 25, 1940, ch. 421, 54 Stat. 555.
June 30, 1939, ch. 253, title I, 53 Stat. 968.
June 16, 1938, ch. 464, title I, 52 Stat. 740.
June 29, 1937, ch. 404, title I, 50 Stat. 425.
June 4, 1936, ch. 489, title I, 49 Stat. 1450.
May 17, 1935, ch. 131, title I, 49 Stat. 275.
Mar. 26, 1934, ch. 89, 48 Stat. 493.
Mar. 3, 1933, ch. 203, 47 Stat. 1459.
July 7, 1932, ch. 443, 47 Stat. 637.
Feb. 23, 1931, ch. 278, 46 Stat. 1268.
May 27, 1930, ch. 341, 46 Stat. 418.
Feb. 16, 1929, ch. 227, 45 Stat. 1212.
May 16, 1928, ch. 572, 45 Stat. 561.
Jan. 18, 1927, ch. 39, 44 Stat. 998.
May 11, 1926, ch. 286, 44 Stat. 523.
Feb. 10, 1925, ch. 200, 43 Stat. 844.
§414a. Transferred
Editorial Notes
Codification
Section 414a was editorially reclassified as section 1436a of this title.
§415. Transferred
Editorial Notes
Codification
Section 415 was editorially reclassified as section 2241b of this title.
§415–1. Repealed. Pub. L. 113–79, title VII, §7514, Feb. 7, 2014, 128 Stat. 903
Section, Pub. L. 110–234, title VII, §7523, May 22, 2008, 122 Stat. 1272; Pub. L. 110–246, §4(a), title VII, §7523, June 18, 2008, 122 Stat. 1664, 2034, related to seed distribution.
§415a. Omitted
Editorial Notes
Codification
Section, from act June 16, 1938, ch. 464, title I, 52 Stat. 739, known as the Department of Agriculture Appropriation Act, 1939, related to sale of practical forms of grades of wool and mohair. See section 2247a of this title. Similar provisions were contained in the following prior appropriation acts:
June 29, 1937, ch. 404, title I, 50 Stat. 424.
June 4, 1936, ch. 489, title I, 49 Stat. 1450.
May 17, 1935, ch. 131, title I, 49 Stat. 275.
Mar. 26, 1934, ch. 89, 48 Stat. 493.
Mar. 3, 1933, ch. 203, 47 Stat. 1458.
July 7, 1932, ch. 443, 47 Stat. 636.
Feb. 23, 1931, ch. 278, 46 Stat. 1268.
May 27, 1930, ch. 341, 46 Stat. 418.
Feb. 16, 1929, ch. 227, 45 Stat. 1212.
May 16, 1928, ch. 572, 45 Stat. 561.
Jan. 18, 1927, ch. 39, 44 Stat. 997.
§415b. Omitted
Editorial Notes
Codification
Section, act May 17, 1928, ch. 602, §1, 45 Stat. 593, authorized appropriations of funds for purposes of former section 415c of this title, and was omitted from the Code as obsolete.
§415c. Omitted
Editorial Notes
Codification
Section, act May 17, 1928, ch. 602, §2, 45 Stat. 593, related to dissemination of information relating to wool and to the grading of wool, and was omitted from the Code as obsolete.
§415d. Omitted
Editorial Notes
Codification
Section, act May 17, 1928, ch. 602, §3, 45 Stat. 594, related to rules and regulations for and deposit of receipts under former sections 415b to 415d of this title, and was omitted from the Code as obsolete.
§415e. Transferred
Editorial Notes
Codification
Section 415e was editorially reclassified as section 2247a of this title.
§416. Omitted
Editorial Notes
Codification
Section, from act May 11, 1922, ch. 185, 42 Stat. 517, known as the Agriculture Department Appropriation Act, 1923, authorized awarding a contract for up to five years for distribution of plants, and was omitted from the Code as obsolete.
§417. Transferred
Editorial Notes
Codification
Section 417 was editorially reclassified as section 7643 of this title.
§418. Transferred
Editorial Notes
Codification
Section 418 was editorially reclassified as section 2207c of this title.
§419. Repealed. Oct. 31, 1951, ch. 654, §1(12), 65 Stat. 701
Section, act May 5, 1945, ch. 109, 59 Stat. 143, related to sale by Secretary of Agriculture of products of agricultural experiment station in Puerto Rico, and disposition of moneys derived therefrom. Similar provisions had been carried in prior Department of Agriculture appropriation acts back to and including that for the fiscal year ending June 30, 1919 (40 Stat. 1000). Similar provisions were contained in the following prior appropriation acts:
June 28, 1944, ch. 296, 58 Stat. 432.
July 12, 1943, ch. 215, 57 Stat. 400.
July 22, 1942, ch. 516, 56 Stat. 670.
July 1, 1941, ch. 267, 55 Stat. 413.
June 25, 1940, ch. 421, 54 Stat. 536.
June 30, 1939, ch. 253, title I, 53 Stat. 944.
June 16, 1938, ch. 464, title I, 52 Stat. 715.
June 29, 1937, ch. 404, 50 Stat. 399.
June 4, 1936, ch. 489, 49 Stat. 1425.
May 17, 1935, ch. 131, title I, 49 Stat. 251.
Mar. 26, 1934, ch. 89, 48 Stat. 471.
Mar. 3, 1933, ch. 203, 47 Stat. 1436.
July 7, 1932, ch. 443, 47 Stat. 614.
May 17, 1932, ch. 190, 47 Stat. 158.
Feb. 23, 1931, ch. 278, 46 Stat. 1246.
May 27, 1930, ch. 341, 46 Stat. 396.
Feb. 16, 1929, ch. 227, 45 Stat. 1192.
May 16, 1928, ch. 572, 45 Stat. 542.
Jan. 18, 1927, ch. 39, 44 Stat. 979.
May 11, 1926, ch. 286, 44 Stat. 502.
Feb. 10, 1925, ch. 200, 43 Stat. 824.
§420. Transferred
Editorial Notes
Codification
Section 420 was editorially reclassified as section 2217a of this title.
§421. Omitted
Editorial Notes
Codification
Section, act July 3, 1926, ch. 769, §1, 44 Stat. 840, directed Secretary of Agriculture to establish a dairying and livestock experiment station in Mandan, North Dakota, and was omitted from the Code as obsolete.
§421a. Omitted
Editorial Notes
Codification
Section, act July 3, 1926, ch. 769, §2, 44 Stat. 840, appropriated $25,000 to effectuate the purposes of former section 421 of this title, and was omitted from the Code as obsolete.
§422. Omitted
Editorial Notes
Codification
Section, act May 29, 1928, ch. 892, §1, 45 Stat. 981, directed Secretary of Agriculture to establish a dairying station in Lewisburg, Tennessee, and was omitted from the Code as obsolete.
§422a. Omitted
Editorial Notes
Codification
Section, act May 29, 1928, ch. 892, §2, 45 Stat. 981, appropriated $50,000 for the purposes of former section 422 of this title, and was omitted from the Code as obsolete.
§423. Transferred
Editorial Notes
Codification
Section 423 was editorially reclassified as section 2120 of this title.
§424. Transferred
Editorial Notes
Codification
Section 424 was editorially reclassified as section 2121 of this title.
§425. Transferred
Editorial Notes
Codification
Section 425 was editorially reclassified as section 2122 of this title.
§426. Transferred
Editorial Notes
Codification
Section 426 was editorially reclassified as section 8351 of this title.
§426a. Omitted
Editorial Notes
Codification
Section, act Mar. 2, 1931, ch. 370, §2, 46 Stat. 1469, authorized $1,000,000 per year for fiscal years 1932 to 1941, inclusive.
§426b. Transferred
Editorial Notes
Codification
Section 426b was editorially reclassified as section 8352 of this title.
§426c. Transferred
Editorial Notes
Codification
Section 426c was editorially reclassified as section 8353 of this title.
§426d. Transferred
Editorial Notes
Codification
Section 426d was editorially reclassified as section 8354 of this title.
§427. Transferred
Editorial Notes
Codification
Section 427 was editorially reclassified as section 3104 of this title.
§427a. Repealed. Aug. 11, 1955, ch. 790, §2, 69 Stat. 674
Section, act June 29, 1935, ch. 338, title I, §2, 49 Stat. 437, authorized research by experiment stations. See section 361a of this title.
Statutory Notes and Related Subsidiaries
Existing Rights and Liabilities
Any rights or liabilities existing under this section unaffected by repeal, see section 2 of act Aug. 11, 1955, set out as a note under former section 361 of this title.
§427b. Repealed. Aug. 11, 1955, ch. 790, §2, 69 Stat. 674
Section, act June 29, 1935, ch. 338, title I, §3, 49 Stat. 437, authorized appropriations. See section 361b of this title.
Statutory Notes and Related Subsidiaries
Existing Rights and Liabilities
Any rights or liabilities existing under this section unaffected by repeal, see section 2 of act Aug. 11, 1955, set out as a note under former section 361 of this title.
§427c. Repealed. Aug. 11, 1955, ch. 790, §2, 69 Stat. 674
Section, act June 29, 1935, ch. 338, title I, §4, 49 Stat. 437, authorized allocation of appropriations. See section 361c of this title.
Statutory Notes and Related Subsidiaries
Existing Rights and Liabilities
Any rights or liabilities existing under this section unaffected by repeal, see section 2 of act Aug. 11, 1955, set out as a note under former section 361 of this title.
§427d. Repealed. Aug. 11, 1955, ch. 790, §2, 69 Stat. 674
Section, acts June 29, 1935, ch. 338, title I, §5, 49 Stat. 437; Sept. 21, 1944, ch. 412, title I, §105, 58 Stat. 735, related to allocation of appropriations. See section 361c of this title.
Statutory Notes and Related Subsidiaries
Existing Rights and Liabilities
Any rights or liabilities existing under this section unaffected by repeal, see section 2 of act Aug. 11, 1955, set out as a note under former section 361 of this title.
§427e. Repealed. Aug. 11, 1955, ch. 790, §2, 69 Stat. 674
Section, act June 29, 1935, ch. 338, title I, §6, 49 Stat. 438, defined "Territory". See section 361a of this title.
Statutory Notes and Related Subsidiaries
Existing Rights and Liabilities
Any rights or liabilities existing under this section unaffected by repeal, see section 2 of act Aug. 11, 1955, set out as a note under former section 361 of this title.
§427f. Repealed. Aug. 11, 1955, ch. 790, §2, 69 Stat. 674
Section, act June 29, 1935, ch. 338, title I, §7, 49 Stat. 438, authorized Secretary of Agriculture to prescribe rules and regulations. See section 361g of this title.
Statutory Notes and Related Subsidiaries
Existing Rights and Liabilities
Any rights or liabilities existing under this section unaffected by repeal, see section 2 of act Aug. 11, 1955, set out as a note under former section 361 of this title.
§427g. Repealed. Aug. 11, 1955, ch. 790, §2, 69 Stat. 674
Section, act June 29, 1935, ch. 338, title I, §8, 49 Stat. 438, reserved the right to Congress to amend, suspend, or repeal act June 29, 1935. See section 361i of this title.
Statutory Notes and Related Subsidiaries
Existing Rights and Liabilities
Any rights or liabilities existing under this section unaffected by repeal, see section 2 of act Aug. 11, 1955, set out as a note under former section 361 of this title.
§427h. Repealed. Aug. 11, 1955, ch. 790, §2, 69 Stat. 674
Section, act June 29, 1935, ch. 338, title I, §9, as added Aug. 14, 1946, ch. 966, title I, §101(2), 60 Stat. 1083, authorized appropriations for agricultural experiment stations, provided for availability of funds and unexpended balances, and prescribed allotments for the experiment stations. See sections 361c, 361d, and 361g of this title.
Statutory Notes and Related Subsidiaries
Existing Rights and Liabilities
Any rights or liabilities existing under this section unaffected by repeal, see section 2 of act Aug. 11, 1955, set out as a note under former section 361 of this title.
§427i. Transferred
Editorial Notes
Codification
Section 427i was editorially reclassified as section 3105 of this title.
§427j. Repealed. Aug. 11, 1955, ch. 790, §2, 69 Stat. 674
Section, act June 29, 1935, ch. 338, title I, §11, as added Aug. 14, 1946, ch. 966, title I, §101(2), 60 Stat. 1086; amended July 31, 1947, ch. 412, 61 Stat. 694; Aug. 30, 1954, ch. 1076, §1(7), 68 Stat. 966, authorized use of funds appropriated for agricultural research program for market research projects and required an annual report to Congress. See sections 361a to 361h of this title.
Statutory Notes and Related Subsidiaries
Existing Rights and Liabilities
Any rights or liabilities existing under this section as unaffected by repeal, see section 2 of act Aug. 11, 1955, set out as a note under section 361 of this title.
§428. Omitted
Editorial Notes
Codification
Section, act June 4, 1956, ch. 355, title V, §503, 70 Stat. 240, related to options to purchase lands and was superseded by section 2268a of this title. Similar provisions were contained in the following prior appropriation acts:
May 23, 1955, ch. 43, title V, §503, 69 Stat. 63.
June 29, 1954, ch. 409, title V, §503, 68 Stat. 318.
July 28, 1953, ch. 251, title IV, §403, 67 Stat. 224.
July 5, 1952, ch. 574, title IV, §403, 66 Stat. 355.
Aug. 31, 1951, ch. 374, title IV, §403, 65 Stat. 246.
Sept. 6, 1950, ch. 896, Ch. VI, title IV, §407, 64 Stat. 657.
June 29, 1949, ch. 280, title I, 63 Stat. 325.
June 19, 1948, ch. 543, title I, 62 Stat. 508.
July 30, 1947, ch. 356, title I, 61 Stat. 523.
June 22, 1946, ch. 445, 60 Stat. 271.
May 5, 1945, ch. 109, 59 Stat. 136.
June 28, 1944, ch. 296, 58 Stat. 426.
July 12, 1943, ch. 215, 57 Stat. 393.
July 22, 1942, ch. 516, 56 Stat. 665.
July 1, 1941, ch. 267, 55 Stat. 408.
June 25, 1940, ch. 421, 54 Stat. 532.
§428a. Transferred
Editorial Notes
Codification
Section 428a was editorially reclassified as section 2268a of this title.
§428b. Transferred
Editorial Notes
Codification
Section 428b was editorially reclassified as section 5942 of this title.
§428c. Transferred
Editorial Notes
Codification
Section 428c was editorially reclassified as section 5943 of this title.
§429. Repealed. Pub. L. 107–171, title X, §10418(a)(2), May 13, 2002, 116 Stat. 507
Section, act Sept. 21, 1944, ch. 412, title I, §101(b), 58 Stat. 734; Aug. 4, 1950, ch. 579, 64 Stat. 413, related to improvement of poultry, poultry products, and hatcheries.
§430. Transferred
Editorial Notes
Codification
Section 430 was editorially reclassified as section 398 of this title.
§431. Transferred
Editorial Notes
Codification
Section 431 was editorially reclassified as section 626 of Title 21, Food and Drugs.
§432. Transferred
Editorial Notes
Codification
Section 432 was editorially reclassified as section 5941 of this title.
§433. Transferred
Editorial Notes
Codification
Section 433 was editorially reclassified as section 399 of this title.
§434. Transferred
Editorial Notes
Codification
Section 434 was editorially reclassified as a note under section 399 of this title.
§435. Omitted
Editorial Notes
Codification
Section, Pub. L. 93–135, title V, §502, Oct. 24, 1973, 87 Stat. 489, which made inapplicable provisions of law prohibiting or restricting employment of aliens to employment under the appropriations for the Foreign Agricultural Service, was from the Department of Agriculture Appropriation Act, 1974, Pub. L. 93–135. Section was not repeated in the Department of Agriculture Appropriation Act, 1975, and accordingly, section was omitted from the Code. For provisions covering employment of aliens generally, see Citizenship Requirement for Employees Compensated From Appropriated Funds note under section 3101 of Title 5, Government Organization and Employees. Similar provisions were contained in the following prior appropriations acts:
Pub. L. 92–399, title V, §502, Aug. 22, 1972, 86 Stat. 611.
Pub. L. 92–73, title V, §502, Aug. 10, 1971, 85 Stat. 201.
Pub. L. 91–566, title V, §502, Dec. 22, 1970, 84 Stat. 1496.
Pub. L. 91–127, title V, §502, Nov. 26, 1969, 83 Stat. 260.
Pub. L. 90–463, title V, §502, Aug. 8, 1968, 82 Stat. 653.
Pub. L. 90–113, title V, §502, Oct. 24, 1967, 81 Stat. 334.
Pub. L. 89–556, title V, §502, Sept. 7, 1966, 80 Stat. 703.
Pub. L. 89–316, title V, §502, Nov. 2, 1965, 79 Stat. 1179.
Pub. L. 88–573, title V, §502, Sept. 2, 1964, 78 Stat. 876.
Pub. L. 88–250, title VI, §602, Dec. 30, 1963, 77 Stat. 833.
Pub. L. 87–879, title VI, §602, Oct. 24, 1962, 76 Stat. 1215.
Pub. L. 87–112, title V, §502, July 26, 1961, 75 Stat. 240.
Pub. L. 86–532, title IV, §402, June 29, 1960, 74 Stat. 244.
Pub. L. 86–80, title IV, §402, July 8, 1959, 73 Stat. 179.
Pub. L. 85–459, title IV, §402, June 13, 1958, 72 Stat. 199.
Pub. L. 85–118, title V, §502, Aug. 2, 1957, 71 Stat. 340.
June 4, 1956, ch. 355, title V, §502, 70 Stat. 240.
May 23, 1955, ch. 43, title V, §502, 69 Stat. 63.
June 29, 1954, ch. 409, title V, §502, 68 Stat. 318.
July 28, 1953, ch. 251, title IV §402, 67 Stat. 224.
July 5, 1952, ch. 574, title IV, §402, 66 Stat. 355.
Aug. 31, 1951, ch. 374, title IV, §402, 65 Stat. 245.
Sept. 6, 1950, ch. 896, ch. VI, title IV, §402, 64 Stat. 679.
June 2, 1949, ch. 280, title III, §302, 63 Stat. 348.
June 19, 1948, ch. 543, title I, §4, 62 Stat. 530.
July 30, 1947, ch. 356, title I, §4, 61 Stat. 548.
§436. Omitted
Editorial Notes
Codification
Section, act Apr. 21, 1948, ch. 224, §1, 62 Stat. 197, transferred records, property, and civilian personnel of the Remount Service of the Quartermaster Corps of the Army to the Department of Agriculture effective July 1, 1948, and was omitted from the Code as obsolete.
§437. Omitted
Editorial Notes
Codification
Section, Apr. 21, 1948, ch. 224, §2, 62 Stat. 197, authorized Secretary of Agriculture to receive the property transferred by former section 436 of this title and directed the Secretary to administer it to best advance the livestock and agricultural interests of the United States, and was omitted from the Code as obsolete.
Statutory Notes and Related Subsidiaries
Authorization of Appropriations; Abolition of Army Remount Program
Act Apr. 21, 1948, ch. 224, §4, 62 Stat. 198, authorized appropriations to carry out former sections 436 to 438 of this title and abolished authority of Department of the Army to conduct a remount breeding program.
§438. Repealed. Pub. L. 88–448, title IV, §402(a)(26), Aug. 19, 1964, 78 Stat. 494
Section, act Apr. 21, 1948, ch. 224, §3, 62 Stat. 197, related to employment of retired Army officers in Remount Service.
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective on first day of first month which begins later than ninetieth day following Aug. 19, 1964, see section 403 of Pub. L. 88–448.
§439. Omitted
Editorial Notes
Codification
Section, July 2, 1948, ch. 818, §1, 62 Stat. 1234, related to transfer of certain government-owned alcohol plants, and was omitted from the Code as obsolete.
§439a. Omitted
Editorial Notes
Codification
Section, July 2, 1948, ch. 818, §2, 62 Stat. 1234, authorized Secretary of Agriculture to operate plants under former sections 439 to 439e of this title, and was omitted from the Code as obsolete.
§439b. Omitted
Editorial Notes
Codification
Section, July 2, 1948, ch. 818, §3, 62 Stat. 1235, related to disposition of plants under former sections 439 to 439e of this title, and was omitted from the Code as obsolete.
§439c. Omitted
Editorial Notes
Codification
Section, July 2, 1948, ch. 818, §4, 62 Stat. 1235, related to powers of Secretary of Agriculture under former sections 439 to 439e of this title, and was omitted from the Code as obsolete.
§439d. Omitted
Editorial Notes
Codification
Section, July 2, 1948, ch. 818, §5, 62 Stat. 1235, related to assumption of obligations of Muscatine, Iowa, plant, and was omitted from the Code as obsolete.
§439e. Omitted
Editorial Notes
Codification
Section, July 2, 1948, ch. 818, §6, 62 Stat. 1235, authorized appropriations for purposes of former sections 439 to 439e of this title, and was omitted from the Code as obsolete.
§440. Transferred
Editorial Notes
Codification
Section 440 was editorially reclassified as section 1436 of this title.
§441. Repealed. Pub. L. 85–36, title I, §111, May 23, 1957, 71 Stat. 35
Section, act Sept. 22, 1951, ch. 409, 65 Stat. 335, related to prevention of entry of mollusks. See chapter 7B of this title.
§442. Transferred
Editorial Notes
Codification
Section 442 was editorially reclassified as section 667f of Title 16, Conservation.
§443. Transferred
Editorial Notes
Codification
Section 443 was editorially reclassified as section 667f–1 of Title 16, Conservation.
§444. Transferred
Editorial Notes
Codification
Section 444 was editorially reclassified as section 667f–2 of Title 16, Conservation.
§445. Transferred
Editorial Notes
Codification
Section 445 was editorially reclassified as section 667f–3 of Title 16, Conservation.
§446. Repealed. Pub. L. 86–133, Aug. 4, 1959, 73 Stat. 279
Section, act July 3, 1956, ch. 512, §5, 70 Stat. 492, prescribed three years following July 3, 1956, as expiration date for availability of grain under sections 667f to 667f–3 of Title 16, Conservation.
§447. Transferred
Editorial Notes
Codification
Section 447 was editorially reclassified as section 667g of Title 16, Conservation.
§448. Transferred
Editorial Notes
Codification
Section 448 was editorially reclassified as section 667g–1 of Title 16, Conservation.
§449. Transferred
Editorial Notes
Codification
Section 449 was editorially reclassified as section 667g–2 of Title 16, Conservation.
§450. Transferred
Editorial Notes
Codification
Section 450 was editorially reclassified as section 1633 of this title.
§450a. Transferred
Editorial Notes
Codification
Section 450a was editorially reclassified as section 3318a of this title.
§450b. Transferred
Editorial Notes
Codification
Section 450b was editorially reclassified as section 2279i of this title.
Prior Provisions
A prior section 450b, Pub. L. 89–106, §2, Aug. 4, 1965, 79 Stat. 431, which related to research grants, duration, records, and audit, was transferred to section 450i of this title, prior to editorial reclassification and renumbering as section 3157 of this title.
§450c. Transferred
Editorial Notes
Codification
Section 450c was editorially reclassified as section 2204–1 of this title.
§450d. Transferred
Editorial Notes
Codification
Section 450d was editorially reclassified as section 2204–2 of this title.
§450e. Transferred
Editorial Notes
Codification
Section 450e was editorially reclassified as section 2204–3 of this title.
§450f. Transferred
Editorial Notes
Codification
Section 450f was editorially reclassified as section 2204–4 of this title.
§450g. Transferred
Editorial Notes
Codification
Section 450g was editorially reclassified as section 2204–5 of this title.
§450h. Transferred
Editorial Notes
Codification
Section, act July 24, 1919, ch. 26, 41 Stat. 270, as amended, was transferred to section 2220 of this title.
Section was formerly classified to sections 67 and 564 of Title 5 prior to the general revision and enactment of Title 5, Government Organization and Employees, by Pub. L. 89–554, §1, Sept. 6, 1966, 80 Stat. 378.
§450i. Transferred
Editorial Notes
Codification
Section 450i was editorially reclassified as section 3157 of this title.
§450j. Transferred
Editorial Notes
Codification
Section 450j was editorially reclassified as section 4551 of this title.
§450k. Transferred
Editorial Notes
Codification
Section 450k was editorially reclassified as section 4552 of this title.
§450l. Transferred
Editorial Notes
Codification
Section 450l was editorially reclassified as section 4553 of this title.
CHAPTER 18—COOPERATIVE MARKETING
§451. "Agricultural products" defined
When used in this chapter the term "agricultural products" means agricultural, horticultural, viticultural, and dairy products, livestock and the products thereof, the products of poultry and bee raising, the edible products of forestry, and any and all products raised or produced on farms and processed or manufactured products thereof, transported or intended to be transported in interstate and/or foreign commerce.
(July 2, 1926, ch. 725, §1, 44 Stat. 802.)
§452. Supervision of division of cooperative marketing
The division of cooperative marketing shall be under the direction and supervision of the Secretary of Agriculture.
(July 2, 1926, ch. 725, §2, 44 Stat. 802.)
Editorial Notes
Codification
First sentence of section, which provided that "The Secretary of Agriculture is hereby authorized and directed to establish a division of cooperative marketing with suitable personnel in the Bureau of Agricultural Economics of the Department of Agriculture or in such bureau in the Department of Agriculture as may hereafter be concerned with the marketing and distribution of farm products" was omitted from the Code as executed.
Statutory Notes and Related Subsidiaries
Transfer to Secretary of Agriculture
Act Aug. 6, 1953, ch. 335, §9, 67 Stat. 394, provided: "There is hereby transferred from the Farm Credit Administration to the jurisdiction and control of the Secretary of Agriculture the Division of Cooperative Marketing (by whatever name now called) authorized and created under and by virtue of an Act of Congress of July 2, 1926 (Public, Numbered 450, Sixty-ninth Congress), entitled 'An Act to create a Division of Cooperative Marketing in the Department of Agriculture; to provide for the acquisition and dissemination of information pertaining to cooperation; to promote the knowledge of cooperative principles and practices; to provide for calling advisers to counsel with the Secretary of Agriculture on cooperative activities; to authorize cooperative associations to acquire, interpret, and disseminate crop and market information, and for other purposes [this chapter]', together with all functions pertaining to the work and services of such Division, its personnel, property (including office equipment), assets, funds, contracts, and records used and employed in the execution of its functions, powers, and duties, and so much of the unexpended balances of appropriations, allocations, and other funds available or to be made available for salaries, expenses, and all other administrative expenditures as the Director of the Bureau of the Budget [now Director of the Office of Management and Budget] shall determine, for use in the execution of the functions, powers, and duties of said Division."
Executive Documents
Transfer of Functions
Farmer Cooperative Service established in Department of Agriculture Dec. 4, 1953, pursuant to Secretary's Memorandum 1320, Supp. 4, 1953, as successor to functions of Cooperative Research and Service Division, Farm Credit Administration.
Ex. Ord. No. 9322, Mar. 26, 1943, 8 F.R. 3807, as amended by Ex. Ord. No. 9334, Apr. 19, 1943, 8 F.R. 5423, removed Farm Credit Administration from Food Production Administration of Department of Agriculture and returned it to its former status as a separate agency of Department.
Ex. Ord. No. 9280, Dec. 5, 1942, 7 F.R. 10179, made Farm Credit Administration a part of Food Production Administration of Department of Agriculture.
Farm Credit Administration transferred to Department of Agriculture by 1939 Reorg. Plan No. I, §401, 4 F.R. 2727, 53 Stat. 1423, set out in the Appendix to Title 5, Government Organization and Employees.
Ex. Ord. No. 6084, Mar. 27, 1933, set out as a note preceding section 2241 of Title 12, Banks and Banking, changed name of Federal Farm Board to Farm Credit Administration and name of office of Chairman of Federal Farm Board to Governor of Farm Credit Administration.
Ex. Ord. No. 5200, Oct. 1, 1929, transferred, eff. Oct. 1, 1929, from Department of Agriculture to jurisdiction and control of Federal Farm Board the whole of Division of Cooperative Marketing in Bureau of Agricultural Economics of Department of Agriculture, all functions pertaining to work and services of such division, its records, property, including office equipment, personnel, and unexpended balances of appropriation, pertaining to such work or services.
Exceptions From Transfer of Functions
Functions of Corporations of Department of Agriculture, boards of directors and officers of such corporations; Advisory Board of Commodity Credit Corporation; and Farm Credit Administration or any agency, officer, or entity of, under, or subject to supervision of said Administration excepted from functions of officers, agencies, and employees transferred to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
§453. Authority and duties of division
(a) The division shall render service to associations of producers of agricultural products, and federations and subsidiaries thereof, engaged in the cooperative marketing of agricultural products, including processing, warehousing, manufacturing, storage, the cooperative purchasing of farm supplies, credit, financing, insurance, and other cooperative activities.
(b) The division is authorized—
(1) To acquire, analyze, and disseminate economic, statistical, and historical information regarding the progress, organization, and business methods of cooperative associations in the United States and foreign countries.
(2) To conduct studies of the economic, legal, financial, social, and other phases of cooperation, and publish the results thereof. Such studies shall include the analyses of the organization, operation, financial and merchandising problems of cooperative associations.
(3) To make surveys and analyses if deemed advisable of the accounts and business practices of representative cooperative associations upon their request; to report to the association so surveyed the results thereof; and with the consent of the association so surveyed to publish summaries of the results of such surveys, together with similar facts, for the guidance of cooperative associations and for the purpose of assisting cooperative associations in developing methods of business and market analysis.
(4) To confer and advise with committees or groups of producers, if deemed advisable, that may be desirous of forming a cooperative association and to make an economic survey and analysis of the facts surrounding the production and marketing of the agricultural product or products which the association, if formed, would handle or market.
(5) To acquire from all available sources information concerning crop prospects, supply, demand, current receipts, exports, imports, and prices of the agricultural products handled or marketed by cooperative associations, and to employ qualified commodity marketing specialists to summarize and analyze this information and disseminate the same among cooperative associations and others.
(6) To promote the knowledge of cooperative principles and practices and to cooperate, in promoting such knowledge, with educational and marketing agencies, cooperative associations, and others.
(7) To make such special studies, in the United States and foreign countries, and to acquire and disseminate such information and findings as may be useful in the development and practice of cooperation.
(July 2, 1926, ch. 725, §3, 44 Stat. 802.)
§454. Advisers to counsel with Secretary of Agriculture; expenses and subsistence
The Secretary of Agriculture is authorized, in his discretion, to call advisers to counsel with him and/or his representatives relative to specific problems of cooperative marketing of farm products or any other cooperative activity. Any person, other than an officer, agent, or employee of the United States, called into conference, as provided for in this section, may be paid actual transportation expenses and not to exceed $10 per diem to cover subsistence and other expenses while in conference and en route from and to his home.
(July 2, 1926, ch. 725, §4, 44 Stat. 803.)
Statutory Notes and Related Subsidiaries
Transfer to Secretary of Agriculture
Transfer of Division of Cooperative Marketing "(by whatever name now called)" from Farm Credit Administration to Secretary of Agriculture, by act Aug. 6, 1953, ch. 335, §9, 67 Stat. 394, see note set out under section 452 of this title.
Executive Documents
Transfer of Functions
Farmer Cooperative Service in Department of Agriculture as successor to functions of Cooperative Research and Service Division, Farm Credit Administration, see note set out under section 452 of this title.
For prior transfers of functions, see notes set out under section 452 of this title.
Exceptions From Transfer of Functions
Functions of Corporations of Department of Agriculture, boards of directors and officers of such corporations; Advisory Board of Commodity Credit Corporation; and Farm Credit Administration or any agency, officer, or entity of, under, or subject to supervision of said Administration excepted from functions of officers, agencies, and employees transferred to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
§455. Dissemination of crop, market, etc., information by cooperative marketing associations
Persons engaged, as original producers of agricultural products, such as farmers, planters, ranchmen, dairymen, nut or fruit growers, acting together in associations, corporate or otherwise, in collectively processing, preparing for market, handling, and marketing in interstate and/or foreign commerce such products of persons so engaged, may acquire, exchange, interpret, and disseminate past, present, and prospective crop, market, statistical, economic, and other similar information by direct exchange between such persons, and/or such associations or federations thereof, and/or by and through a common agent created or selected by them.
(July 2, 1926, ch. 725, §5, 44 Stat. 803.)
§456. Rules and regulations; appointment, removal, and compensation of employees; expenditures; authorization of appropriations
The Secretary of Agriculture may make such rules and regulations as may be deemed advisable to carry out the provisions of this chapter and may cooperate with any department or agency of the Government, any State, Territory, District, or possession, or department, agency, or political subdivision thereof, or any person; and may call upon any other Federal department, board, or commission for assistance in carrying out the purposes of this chapter; and shall have the power to appoint, remove, and fix the compensation of such officers and employees not in conflict with existing law and make such expenditure for rent, outside the District of Columbia, printing, telegrams, telephones, books of reference, books of law, periodicals, newspapers, furniture, stationery, office equipment, travel, and other supplies and expenses as shall be necessary to the administration of this chapter in the District of Columbia and elsewhere, and there is hereby authorized to be appropriated, such sums as may be necessary after the fiscal year 1927, for carrying out the purposes of this chapter.
(July 2, 1926, ch. 725, §6, 44 Stat. 803.)
Statutory Notes and Related Subsidiaries
Transfer to Secretary of Agriculture
Transfer of Division of Cooperative Marketing "(by whatever name now called)" from Farm Credit Administration to Secretary of Agriculture, by act Aug. 6, 1953, ch. 335, §9, 67 Stat. 394, see note set out under section 452 of this title.
Executive Documents
Transfer of Functions
Farmer Cooperative Service in Department of Agriculture as successor to functions of Cooperative Research and Service Division, Farm Credit Administration, see note set out under section 452 of this title.
For prior transfers of functions, see notes set out under section 452 of this title.
Exceptions From Transfer of Functions
Functions of Corporations of Department of Agriculture, boards of directors and officers of such corporations; Advisory Board of Commodity Credit Corporation; and Farm Credit Administration or any agency, officer, or entity of, under, or subject to supervision of said Administration excepted from functions of officers, agencies, and employees transferred to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
§457. Separability
If any provision of this chapter is declared unconstitutional or the applicability thereof to any person or circumstance is held invalid, the validity of the remainder of the chapter and the applicability of such provision to other persons and circumstances shall not be affected thereby, and nothing contained in this chapter is intended nor shall be construed, to modify or repeal any of the provisions of sections 291 and 292 of this title.
(July 2, 1926, ch. 725, §7, 44 Stat. 803.)
CHAPTER 19—COTTON STATISTICS AND ESTIMATES
§471. Statistics and estimates of grades and staple length of cotton; collection and publication
The Secretary of Agriculture is authorized and directed to collect and publish annually, on dates to be announced by him, statistics or estimates concerning the grades and staple length of stocks of cotton, known as the carry-over, on hand on the 1st of August of each year in warehouses and other establishments of every character in the continental United States; and following such publication each year, to publish, at intervals in his discretion, his estimate of the grades and staple length of cotton of the then current crop: Provided, That not less than three such estimates shall be published with respect to each crop. In any such statistics or estimates published, the cotton which on the date for which such statistics are published may be recognized as tenderable on contracts of sale of cotton for future delivery under the United States Cotton Futures Act, shall be stated separately from that which may be untenderable under said Act.
(Mar. 3, 1927, ch. 337, §1, 44 Stat. 1372.)
Editorial Notes
References in Text
The United States Cotton Futures Act, referred to in text, is part A of act Aug. 11, 1916, ch. 313, 39 Stat. 476, which was repealed by section 4 of act Feb. 10, 1939, ch. 2, 53 Stat. 1. For complete classification of this Act to the Code prior to its repeal, see Tables.
Statutory Notes and Related Subsidiaries
Short Title of 1987 Amendment
Pub. L. 100–108, §1, Aug. 20, 1987, 101 Stat. 728, provided: "That this Act [amending section 473a of this title and enacting provisions set out as notes under section 473a of this title] may be cited as the 'Uniform Cotton Classing Fees Act of 1987'."
Short Title
Act Mar. 3, 1927, which enacted sections 471 to 474 and amended sections 475 and 476 of this title, is popularly known as the "Cotton Statistics and Estimates Act".
§472. Information furnished of confidential character; penalty for divulging information
The information furnished by any individual establishment under the provisions of this chapter shall be considered as strictly confidential and shall be used only for the statistical purpose for which it is supplied. Any employee of the Department of Agriculture who, without the written authority of the Secretary of Agriculture, shall publish or communicate any information given into his possession by reason of his employment under the provisions of this chapter shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not less than $300 or more than $1,000, or imprisoned for a period of not exceeding one year, or both so fined and imprisoned, at the discretion of the court.
(Mar. 3, 1927, ch. 337, §2, 44 Stat. 1373.)
§473. Persons required to furnish information; request; failure to furnish; false information
It shall be the duty of every owner, president, treasurer, secretary, director, or other officer or agent of any cotton warehouse, cotton ginnery, cotton mill, or other place or establishment where cotton is stored, whether conducted as a corporation, firm, limited partnership, or individual, and of any owner or holder of any cotton and of the agents and representatives of any such owner or holder, when requested by the Secretary of Agriculture or by any special agent or other employee of the Department of Agriculture acting under the instructions of said Secretary to furnish completely and correctly, to the best of his knowledge, all of the information concerning the grades and staple length of cotton on hand, and when requested to permit such agent or employee of the Department of Agriculture to examine and classify samples of all such cotton on hand. The request of the Secretary of Agriculture for such information may be made in writing or by a visiting representative, and if made in writing shall be forwarded by registered mail, or by certified mail and the registry receipt or receipt for certified mail of the United States Postal Service shall be accepted as evidence of such demand. Any owner, president, treasurer, secretary, director, or other officer or agent of any cotton warehouse, cotton ginnery, cotton mill, or other place or establishment where cotton is stored, or any owner or holder of any cotton or the agent or representative of any such owner or holder, who, under the conditions hereinbefore stated, shall refuse or willfully neglect to furnish any information herein provided for or shall willfully give answers that are false or shall refuse to allow agents or employees of the Department of Agriculture to examine or classify any cotton in store in any such establishment, or in the hands of any owner or holder or of the agent or representative of any such owner or holder, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $300 or more than $1,000.
(Mar. 3, 1927, ch. 337, §3, 44 Stat. 1373; Pub. L. 86–507, §1(3), June 11, 1960, 74 Stat. 200; Pub. L. 91–375, §§4(a), 6(o), Aug. 12, 1970, 84 Stat. 773, 783.)
Editorial Notes
Amendments
1960—Pub. L. 86–507 inserted "or by certified mail" after "registered mail", and "or receipt for certified mail" after "registry receipt."
Statutory Notes and Related Subsidiaries
Change of Name
"United States Postal Service" substituted in text for "Post Office Department" pursuant to Pub. L. 91–375, §§4(a), 6(o), Aug. 12, 1970, 84 Stat. 773, 783, which are set out as notes preceding section 101 of Title 39, Postal Service, and under section 201 of Title 39, respectively, which abolished Post Office Department, transferred its functions to United States Postal Service, and provided that references in other laws to Post Office Department shall be considered a reference to United States Postal Service.
§473a. Cotton classification services
(a) In general
The Secretary of Agriculture (referred to in this section as the "Secretary") shall—
(1) make cotton classification services available to producers of cotton; and
(2) provide for the collection of classification fees from participating producers or agents that voluntarily agree to collect and remit the fees on behalf of producers.
(b) Fees
(1) Use of fees
Classification fees collected under subsection (a)(2) and the proceeds from the sales of samples submitted under this section shall, to the maximum extent practicable, be used to pay the cost of the services provided under this section, including administrative and supervisory costs.
(2) Announcement of fees
The Secretary shall announce a uniform classification fee and any applicable surcharge for classification services not later than June 1 of the year in which the fee applies.
(c) Consultation
(1) In general
In establishing the amount of fees under this section, the Secretary shall consult with representatives of the United States cotton industry.
(2) Exemption
Chapter 10 of title 5 shall not apply to consultations with representatives of the United States cotton industry under this section.
(d) Crediting of fees
Any fees collected under this section and under section 473d of this title, late payment penalties, the proceeds from the sales of samples, and interest earned from the investment of such funds shall—
(1) be credited to the current appropriation account that incurs the cost of services provided under this section and section 473d of this title; and
(2) remain available without fiscal year limitation to pay the expenses of the Secretary in providing those services.
(e) Investment of funds
Funds described in subsection (d) may be invested—
(1) by the Secretary in insured or fully collateralized, interest-bearing accounts; or
(2) at the discretion of the Secretary, by the Secretary of the Treasury in United States Government debt instruments.
(f) Lease agreements
Notwithstanding any other provision of law, the Secretary may enter into long-term lease agreements that exceed 5 years or may take title to property (including through purchase agreements) for the purpose of obtaining offices to be used for the classification of cotton in accordance with this chapter, if the Secretary determines that action would best effectuate the purposes of this chapter.
(g) Authorization of appropriations
To the extent that financing is not available from fees and the proceeds from the sales of samples, there are authorized to be appropriated such sums as are necessary to carry out this section.
(Mar. 3, 1927, ch. 337, §3a, as added Apr. 13, 1937, ch. 75, 50 Stat. 62; amended Pub. L. 97–35, title I, §156(b), Aug. 13, 1981, 95 Stat. 373; Pub. L. 98–403, §1, Aug. 28, 1984, 98 Stat. 1479; Pub. L. 100–108, §2, Aug. 20, 1987, 101 Stat. 728; Pub. L. 102–237, title I, §120(a)–(c), Dec. 13, 1991, 105 Stat. 1842, 1843; Pub. L. 104–127, title IX, §912(a), Apr. 4, 1996, 110 Stat. 1185; Pub. L. 107–171, title X, §10801(a), May 13, 2002, 116 Stat. 525; Pub. L. 110–234, title XIV, §14201, May 22, 2008, 122 Stat. 1457; Pub. L. 110–246, §4(a), title XIV, §14201, June 18, 2008, 122 Stat. 1664, 2219; Pub. L. 117–286, §4(a)(23), Dec. 27, 2022, 136 Stat. 4307.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2022—Subsec. (c)(2). Pub. L. 117–286 substituted "Chapter 10 of title 5" for "The Federal Advisory Committee Act (5 U.S.C. App.)".
2008—Pub. L. 110–246, §14201, inserted section catchline and amended text generally, substituting provisions consisting of subsecs. (a) to (g) for former undesignated provisions which related to cotton classification services in fiscal years 1992 through 2007.
2002—Pub. L. 107–171 substituted "2007" for "2002" in first sentence.
1996—Pub. L. 104–127 substituted "2002" for "1996" in first sentence.
1991—Pub. L. 102–237, §120(c), amended third sentence generally. Prior to amendment, third sentence read as follows: "Special classification services provided at the request of the producer shall not be subject to the restrictions specified in clauses (1), (2), and (3) of the preceding sentence."
Pub. L. 102–237, §120(b)(2), added cl. (7) and struck out former cl. (7). Text read as follows: "the Secretary shall announce the uniform classification fee and any surcharge for the crop not later than June 1 of the year in which the fee applies, except that for fiscal year 1987, such announcement shall be made as soon as practicable following enactment of this proviso."
Pub. L. 102–237, §120(b)(1), added cls. (1) and (2) and struck out former cls. (1) and (2). Text read as follows: "(1) the uniform per bale classification fee to be collected from producers, or their agents, for such classification service in any year shall be the uniform fee collected in the previous year, exclusive of adjustments to such fee made in the previous year under clauses (2), (3), and (4) of this proviso, and as may be adjusted by the percentage change in the Implicit Price Deflator for Gross National Product as indexed during the most recent twelve-month period for which statistics are available; (2) the fee calculated in accordance with clause (1) for a crop year may be increased by an amount not to exceed 1 per centum for every 100,000 running bales, or portion thereof, that the Secretary estimates will be produced in such crop year below the level of 12,500,000 running bales, or decreased by an amount not to exceed 1 per centum for every 100,000 running bales, or portion thereof, that the Secretary estimates will be produced in such crop year above the level of 12,500,000 running bales;".
Pub. L. 102–237, §120(a), amended first sentence generally. Prior to amendment, first sentence read as follows: "Effective for the fiscal years ending September 30, 1987, September 30, 1988, September 30, 1989, September 30, 1990, September 30, 1991, and September 30, 1992, the Secretary of Agriculture shall make cotton classification services available to producers of cotton and shall provide for the collection of classification fees from participating producers, or agents who voluntarily agree to collect and remit the fees on behalf of producers."
1987—Pub. L. 100–108 amended first sentence generally, substituting "September 30, 1987, September 30, 1988, September 30, 1989, September 30, 1990, September 30, 1991, and September 30, 1992" for "September 30, 1985, September 30, 1986, September 30, 1987, and September 30, 1988" and striking out "from" before "agents who voluntarily agree", in second sentence inserted first proviso and struck out former first proviso which read as follows: "That (1) the uniform per bale classification fee to be collected from producers, or their agents, for such classification service in any year shall not exceed the uniform fee collected in the previous year by more than the percentage increase in the Implicit Price Deflator for Gross National Product as indexed during the most recent twelve-month period for which official statistics are available, and (2) the uniform per bale classification fee shall not be increased for any year if the accumulated reserve exceeds 20 per centum of the cost of the classification program in the previous year", and in third sentence substituted "clauses (1), (2), and (3)" for "clauses (1) and (2)".
1984—Pub. L. 98–403 substituted provisions requiring the Secretary to make classification service available to producers and to set and collect fees for provisions establishing similar requirements effective for fiscal years ending Sept. 30, 1982, 1983, and 1984.
1981—Pub. L. 97–35 substituted provisions effective for fiscal years ending Sept. 30, 1982, 1983, and 1984, requiring the Secretary to make classification services available to producers, and to set and collect fees, for provisions authorizing the Secretary to determine and make available classification procedures.
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Effective and Termination Dates of 1991 Amendment
Pub. L. 102–237, title I, §120(e), Dec. 13, 1991, 105 Stat. 1842, provided that subsections (a), (b), and (c) of that section, and the amendments made by subsections (a), (b), and (c) to this section, were effective for the period beginning on Dec. 13, 1991, and ending on September 30, 1996, prior to repeal by Pub. L. 107–171, title X, §10801(b)(3), May 13, 2002, 116 Stat. 525.
Effective and Termination Dates of 1987 Amendment
That part of Pub. L. 100–108, §2, Aug. 20, 1987, 101 Stat. 728, which provided that the amendment made by Pub. L. 100–108 was effective for the period beginning Aug. 20, 1987, and ending Sept. 30, 1992, was repealed by Pub. L. 107–171, title X, §10801(b)(2), May 13, 2002, 116 Stat. 525.
Effective and Termination Dates of 1984 Amendment
That part of Pub. L. 98–403, [§1], Aug. 28, 1984, 98 Stat. 1479, which provided that the amendment made by Pub. L. 98–403 was effective for the period beginning Oct. 1, 1984, and ending Sept. 30, 1988, was repealed by Pub. L. 107–171, title X, §10801(b)(1), May 13, 2002, 116 Stat. 525.
Effective and Termination Dates of 1981 Amendment
Pub. L. 97–35, title I, §156(b), Aug. 13, 1981, 95 Stat. 373, provided that the amendment made by that section is effective only for the fiscal years ending Sept. 30, 1982, Sept. 30, 1983, and Sept. 30, 1984.
[Provisions of section 156 of Pub. L. 97–35 effective Oct. 1, 1981, see section 156(e) of Pub. L. 97–35, set out as an Effective Date note under section 61a of this title.]
Short Title
Act Apr. 13, 1937, which enacted sections 473a to 473c of this title, is popularly known as the "Cotton Classification Act".
Study on Processing Certain Cotton Grades
Pub. L. 100–108, §3, Aug. 20, 1987, 101 Stat. 729, which directed Secretary of Agriculture to conduct a study of differences between processing efficiency and product quality for Light Spotted and White grade cottons and also conduct a survey and research to determine why an increasing proportion of cotton crop was being classified as Light Spotted, with an initial report describing results of studies to be submitted not later than Oct. 1, 1988, to Committee on Agriculture of House of Representatives and Committee on Agriculture, Nutrition, and Forestry of Senate, and a final report to be submitted to such committees as soon as practicable after submission of initial report, was repealed by Pub. L. 102–237, title I, §120(d), Dec. 13, 1991, 105 Stat. 1843.
§473b. Market supply, demand, condition and prices; collection and publication of information
The Secretary of Agriculture is also authorized and directed to collect, authenticate, publish, and distribute, by telegraph, radio, mail, or otherwise, timely information on the market supply, demand, location, condition, and market prices for cotton, and to cause to be prepared regularly and distributed for posting at gins, in post offices, or in other public or conspicuous places in cotton-growing communities, information on prices for the various grades and staple lengths of cotton.
(Mar. 3, 1927, ch. 337, §3b, as added Apr. 13, 1937, ch. 75, 50 Stat. 62.)
§473c. Rules and regulations
The Secretary of Agriculture is further authorized to make such rules and regulations as he may deem necessary to effectuate the purposes of this chapter.
(Mar. 3, 1927, ch. 337, §3c, as added Apr. 13, 1937, ch. 75, 50 Stat. 62.)
§473c–1. Offenses in relation to sampling of cotton for classification
It shall be unlawful—
(a) for any person sampling cotton for classification under this chapter knowingly to sample cotton improperly, or to identify cotton samples improperly, or to accept money or other consideration, directly or indirectly, for any neglect or improper performance of duty as a sampler;
(b) for any person to influence improperly or to attempt to influence improperly or to forcibly assault, resist, impede, or interfere with any sampler in the taking of samples for classification under this chapter;
(c) for any person knowingly to alter or cause to be altered a sample taken for classification under this chapter by any means such as trimming, peeling, or dressing the sample, or by removing any leaf, trash, dust, or other material from the sample for the purpose of misrepresenting the actual quality of the bale from which the sample was taken;
(d) for any person knowingly to cause, or attempt to cause, the issuance of a false or misleading certificate or memorandum of classification under this chapter by deceptive baling, handling, or sampling of cotton, or by any other means, or by submitting samples of such cotton for classification knowing that the cotton has been so baled, handled, or sampled;
(e) for any person knowingly to submit more than one sample from the same bale of cotton for classification under this chapter, except a second sample submitted for review classification;
(f) for any person knowingly to operate or adjust a mechanical cotton sampler in such a manner that a representative sample is not drawn from each bale; and
(g) for any person knowingly to violate any regulation of the Secretary of Agriculture relating to the sampling of cotton made pursuant to section 473c of this title.
(Mar. 3, 1927, ch. 337, §3c–1, as added Pub. L. 86–588, July 5, 1960, 74 Stat. 328.)
§473c–2. Penalties for offenses relating to sampling of cotton
Any person violating any provision of section 473c–1 of this title shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000, or imprisoned not more than one year, or both.
(Mar. 3, 1927, ch. 337, §3c–2, as added Pub. L. 86–588, July 5, 1960, 74 Stat. 329.)
§473c–3. Liability of principal for act of agent
In construing and enforcing the provisions of this chapter, the act, omission, or failure of any agent, officer, or other person acting for or employed by an individual, association, partnership, corporation, or firm, within the scope of his employment or office, shall be deemed to be the act, omission, or failure of the individual, association, partnership, corporation, or firm, as well as that of the person.
(Mar. 3, 1927, ch. 337, §3c–3, as added Pub. L. 86–588, July 5, 1960, 74 Stat. 329.)
§473d. Quality tests and analyses by Secretary for breeders and others; fees
The Secretary of Agriculture is authorized to make analyses of fiber properties, spinning tests, and other tests of the quality of cotton samples submitted to him by cotton breeders and other persons, subject to such terms and conditions and to the payment by such cotton breeders and other persons of such fees as he may prescribe by regulations under this chapter. The fees to be assessed hereunder shall be reasonable, and, as nearly as may be, to cover the cost of the service rendered.
(Mar. 3, 1927, ch. 337, §3d, as added Apr. 7, 1941, ch. 42, 55 Stat. 131.)
§474. Powers of Secretary of Agriculture; appropriation
The Secretary of Agriculture may cooperate with any department or agency of the Government, any State, Territory, District, or possession, or department, agency, or political subdivision thereof, or any person; and shall have the power to appoint, remove, and fix the compensation of such officers and employees, not in conflict with existing law, and make such expenditures for the purchase of samples of cotton, for rent outside the District of Columbia, printing, telegrams, telephones, books of reference, periodicals, furniture, stationery, office equipment, travel, and other supplies and expenses as shall be necessary to the administration of this chapter in the District of Columbia and elsewhere and there are authorized to be appropriated, out of any moneys in the Treasury not otherwise appropriated such sums as may be necessary for such purposes. The Secretary of Agriculture shall maintain until at least January 1, 1999, all cotton classing office locations in the State of Missouri that existed on January 1, 1996.
(Mar. 3, 1927, ch. 337, §4, 44 Stat. 1373; Pub. L. 104–127, title IX, §912(b), Apr. 4, 1996, 110 Stat. 1185.)
Editorial Notes
Amendments
1996—Pub. L. 104–127 inserted at end "The Secretary of Agriculture shall maintain until at least January 1, 1999, all cotton classing office locations in the State of Missouri that existed on January 1, 1996."
Executive Documents
Transfer of Functions
Functions of all officers, agencies, and employees of Department of Agriculture transferred, with certain exceptions, to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
§475. Repealed. Pub. L. 104–127, title VIII, §870, Apr. 4, 1996, 110 Stat. 1175
Section, acts May 3, 1924, ch. 149, §1, 43 Stat. 115; Mar. 3, 1927, ch. 337, §5, 44 Stat. 1373; Aug. 8, 1946, ch. 909, 60 Stat. 940; May 29, 1958, Pub. L. 85–430, §2, 72 Stat. 149; June 30, 1972, Pub. L. 92–331, §1, 86 Stat. 400, directed Secretary of Agriculture to issue cotton crop reports at certain times during growing and harvesting season.
§476. Acreage reports
The Secretary of Agriculture shall cause to be issued a report on or before the 12th day of July of each year showing by States and in toto the estimated acreage of cotton planted, to be followed on or before the 12th day of August with an estimate of the acreage for harvest and on or before the 12th day of December with an estimate of the harvested acreage.
(May 27, 1912, ch. 135, §1, 37 Stat. 118; Mar. 3, 1927, ch. 337, §6, 44 Stat. 1374; Pub. L. 85–430, §1, May 29, 1958, 72 Stat. 149; Pub. L. 92–331, §2, June 30, 1972, 86 Stat. 400.)
Editorial Notes
Codification
Section was not enacted as part of the Cotton Statistics and Estimates Act which enacted sections 471 to 474 of this title and amended sections 475 and 476 of this title.
Section was formerly classified to section 412 of this title.
Amendments
1972—Pub. L. 92–331 substituted "12th" for "10th", "on or before the 12th day of August" for "on August 1", and "on or before the 12th day of December" for "on December 1".
1958—Pub. L. 85–430 substituted provisions requiring report to show estimated acreage of cotton planted, to be followed with an estimate of acreage for harvest and an estimate of harvested acreage for provisions which required report to show number of acres of cotton in cultivation on July 1 of each year, followed with an estimate of acreage of cotton abandoned since July 1.
1927—Act Mar. 3, 1927, struck out "Bureau of Statistics of the Department of Agriculture", substituted "on or before the 10th day of July" for "on or about the first Monday in July" and inserted "on July 1, to be followed on September 1 and December 1 with an estimate of the acreage of cotton abandoned since July 1" after "cultivation".
CHAPTER 20—DUMPING OR DESTRUCTION OF INTERSTATE PRODUCE
§491. Destruction or dumping of farm produce received in interstate commerce by commission merchants, etc.; penalty
After June 30, 1927, any person, firm, association, or corporation receiving any fruits, vegetables, melons, dairy, or poultry products or any perishable farm products of any kind or character, hereinafter referred to as produce, in interstate commerce, or in the District of Columbia, for or on behalf of another, who without good and sufficient cause therefor, shall destroy, or abandon, discard as refuse or dump any produce directly or indirectly, or through collusion with any person, or who shall knowingly and with intent to defraud make any false report or statement to the person, firm, association, or corporation from whom any produce was received, concerning the handling, condition, quality, quantity, sale, or disposition thereof, or who shall knowingly and with intent to defraud fail truly and correctly to account therefor shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than $100 and not more than $3,000, or by imprisonment for a period of not exceeding one year, or both, at the discretion of the court.
(Mar. 3, 1927, ch. 309, §1, 44 Stat. 1355.)
Editorial Notes
Codification
Section constitutes part of section 1 of act Mar. 3, 1927. Remainder of section 1 was classified to section 492 of this title.
§492. Repealed. Aug. 9, 1955, ch. 632, §2, 69 Stat. 553
Section, act Mar. 3, 1927, ch. 309, §1, 44 Stat. 1355, related to investigation of quality and condition of produce received in interstate commerce. See section 1622(h) of this title.
§493. Enforcement of provisions; prosecution of cases
The Secretary of Agriculture is authorized and directed to enforce this chapter. It is made the duty of all United States attorneys to prosecute cases arising under this chapter, subject to the supervision and control of the Department of Justice.
(Mar. 3, 1927, ch. 309, §2, 44 Stat. 1355.)
§494. Rules and regulations; cooperation with States, etc., officers and employees; expenditures
The Secretary of Agriculture may make such rules and regulations as he may deem advisable to carry out the provisions of this chapter and may cooperate with any department or agency of the Government, any State, Territory, District, or possession, or department, agency, or political subdivision thereof, or any person; and may call upon any Federal department, board, or commission for assistance in carrying out the purposes of this chapter; and shall have the power to appoint, remove, and fix the compensation of such officers and employees not in conflict with existing law and make such expenditure for rent, outside the District of Columbia, printing, telegrams, telephones, books of reference, books of law, periodicals, newspapers, furniture, stationery, office equipment, travel, and other supplies and expenses as shall be deemed necessary to the administration of this chapter in the District of Columbia and elsewhere.
(Mar. 3, 1927, ch. 309, §3, 44 Stat. 1355.)
Editorial Notes
Codification
Section constitutes part of section 3 of act Mar. 3, 1927. Remainder of section 3 is classified to sections 495 and 496 of this title.
§495. Authorization of appropriations
There is authorized to be appropriated, out of any moneys in the Treasury not otherwise appropriated, such sums as may be necessary after the fiscal year beginning July 1, 1927 to carry out the purposes of this chapter.
(Mar. 3, 1927, ch. 309, §3, 44 Stat. 1355.)
Editorial Notes
Codification
Section constitutes part of section 3 of act Mar. 3, 1927. Remainder of section 3 is classified to sections 494 and 496 of this title.
§496. Validity of other statutes dealing with same subject
This chapter shall not abrogate nor nullify any other statute, whether State or Federal, dealing with the same subjects as this chapter, but it is intended that all such statutes shall remain in full force and effect, except insofar only as they are inconsistent herewith or repugnant hereto.
(Mar. 3, 1927, ch. 309, §3, 44 Stat. 1355.)
Editorial Notes
Codification
Section constitutes part of section 3 of act Mar. 3, 1927. Remainder of section 3 is classified to sections 494 and 495 of this title.
§497. Separability
If any provision of this chapter is declared unconstitutional or the applicability thereof to any person or circumstance is held invalid, the validity of the remainder of the chapter and the applicability of such provisions to other persons and circumstances shall not be affected thereby.
(Mar. 3, 1927, ch. 309, §4, 44 Stat. 1356.)
CHAPTER 20A—PERISHABLE AGRICULTURAL COMMODITIES
§499a. Short title and definitions
(a) Short title
This chapter may be cited as the "Perishable Agricultural Commodities Act, 1930".
(b) Definitions
For purposes of this chapter:
(1) The term "person" includes individuals, partnerships, corporations, and associations.
(2) The term "Secretary" means the Secretary of Agriculture.
(3) The term "interstate or foreign commerce" means commerce between any State or Territory, or the District of Columbia and any place outside thereof; or between points within the same State or Territory, or the District of Columbia but through any place outside thereof; or within the District of Columbia.
(4) The term "perishable agricultural commodity"—
(A) Means any of the following, whether or not frozen or packed in ice: Fresh fruits and fresh vegetables of every kind and character; and
(B) Includes cherries in brine as defined by the Secretary in accordance with trade usages.
(5) The term "commission merchant" means any person engaged in the business of receiving in interstate or foreign commerce any perishable agricultural commodity for sale, on commission, or for or on behalf of another.
(6) The term "dealer" means any person engaged in the business of buying or selling in wholesale or jobbing quantities, as defined by the Secretary, any perishable agricultural commodity in interstate or foreign commerce, except that (A) no producer shall be considered as a "dealer" in respect to sales of any such commodity of his own raising; (B) no person buying any such commodity solely for sale at retail shall be considered as a "dealer" until the invoice cost of his purchases of perishable agricultural commodities in any calendar year are in excess of $230,000; and (C) no person buying any commodity other than potatoes for canning and/or processing within the State where grown shall be considered a "dealer" whether or not the canned or processed product is to be shipped in interstate or foreign commerce, unless such product is frozen or packed in ice, or consists of cherries in brine, within the meaning of paragraph (4) of this section. Any person not considered as a "dealer" under clauses (A), (B), and (C) may elect to secure a license under the provisions of section 499c of this title, and in such case and while the license is in effect such person shall be considered as a "dealer".
(7) The term "broker" means any person engaged in the business of negotiating sales and purchases of any perishable agricultural commodity in interstate or foreign commerce for or on behalf of the vendor or the purchaser, respectively, except that no person shall be deemed to be a "broker" if such person is an independent agent negotiating sales for and on behalf of the vendor and if the only sales of such commodities negotiated by such person are sales of frozen fruits and vegetables having an invoice value not in excess of $230,000 in any calendar year.
(8) A transaction in respect of any perishable agricultural commodity shall be considered in interstate or foreign commerce if such commodity is part of that current of commerce usual in the trade in that commodity whereby such commodity and/or the products of such commodity are sent from one State with the expectation that they will end their transit, after purchase, in another, including, in addition to cases within the above general description, all cases where sale is either for shipment to another State, or for processing within the State and the shipment outside the State of the products resulting from such processing. Commodities normally in such current of commerce shall not be considered out of such commerce through resort being had to any means or device intended to remove transactions in respect thereto from the provisions of this chapter.
(9) The term "responsibly connected" means affiliated or connected with a commission merchant, dealer, or broker as (A) partner in a partnership, or (B) officer, director, or holder of more than 10 per centum of the outstanding stock of a corporation or association. A person shall not be deemed to be responsibly connected if the person demonstrates by a preponderance of the evidence that the person was not actively involved in the activities resulting in a violation of this chapter and that the person either was only nominally a partner, officer, director, or shareholder of a violating licensee or entity subject to license or was not an owner of a violating licensee or entity subject to license which was the alter ego of its owners.
(10) The terms "employ" and "employment" mean any affiliation of any person with the business operations of a licensee, with or without compensation, including ownership or self-employment.
(11) The term "retailer" means a person that is a dealer engaged in the business of selling any perishable agricultural commodity at retail.
(12) The term "grocery wholesaler" means a person that is a dealer primarily engaged in the full-line wholesale distribution and resale of grocery and related nonfood items (such as perishable agricultural commodities, dry groceries, general merchandise, meat, poultry, and seafood, and health and beauty care items) to retailers. However, such term does not include a person described in the preceding sentence if the person is primarily engaged in the wholesale distribution and resale of perishable agricultural commodities rather than other grocery and related nonfood items.
(13) The term "collateral fees and expenses" means any promotional allowances, rebates, service or materials fees paid or provided, directly or indirectly, in connection with the distribution or marketing of any perishable agricultural commodity.
(June 10, 1930, ch. 436, §1, 46 Stat. 531; Apr. 13, 1934, ch. 120, §1, 48 Stat. 584; Aug. 20, 1937, ch. 719, §1, 50 Stat. 725; June 29, 1940, ch. 456, §§1, 2, 54 Stat. 696; Pub. L. 87–725, §§1, 2, Oct. 1, 1962, 76 Stat. 673; Pub. L. 91–107, §§1, 2, Nov. 4, 1969, 83 Stat. 182; Pub. L. 95–562, §1, Nov. 1, 1978, 92 Stat. 2381; Pub. L. 97–98, title XI, §1115(a), Dec. 22, 1981, 95 Stat. 1269; Pub. L. 102–237, title X, §1011(1), Dec. 13, 1991, 105 Stat. 1898; Pub. L. 104–48, §§2, 9(a), 12(a), Nov. 15, 1995, 109 Stat. 424, 429, 430.)
Editorial Notes
Codification
Section was formerly classified to section 551 of this title.
Amendments
1995—Subsec. (b)(9). Pub. L. 104–48, §12(a), inserted at end "A person shall not be deemed to be responsibly connected if the person demonstrates by a preponderance of the evidence that the person was not actively involved in the activities resulting in a violation of this chapter and that the person either was only nominally a partner, officer, director, or shareholder of a violating licensee or entity subject to license or was not an owner of a violating licensee or entity subject to license which was the alter ego of its owners."
Subsec. (b)(11), (12). Pub. L. 104–48, §2, added pars. (11) and (12).
Subsec. (b)(13). Pub. L. 104–48, §9(a), added par. (13).
1991—Pub. L. 102–237 inserted section catchline, added subsec. (a), designated existing provisions as subsec. (b), and in subsec. (b), inserted heading, substituted "For purposes of this chapter:" for "When used in this chapter—" and periods for semicolons at the end of pars. (1) to (6) and (9).
1981—Pars. (6), (7). Pub. L. 97–98 substituted "$230,000" for "$200,000".
1978—Par. (6)(B). Pub. L. 95–562, §1(a)(1), substituted "$200,000" for "$100,000".
Par. (6)(C). Pub. L. 95–562, §1(b), inserted "other than potatoes" after "commodity".
Par. (7). Pub. L. 95–562, §1(a)(2), substituted "$200,000" for "$100,000".
1969—Par. (6)(B). Pub. L. 91–107, §1, substituted "$100,000" for "$90,000".
Par. (7). Pub. L. 91–107, §2, substituted "$100,000" for "$90,000".
1962—Par. (6). Pub. L. 87–725, §1, substituted "wholesale or jobbing quantities" for "carloads", the requirement that the dealer's invoice cost of his purchases in any calendar year exceed $90,000 for the requirement that his purchases in such year exceed 20 carloads, and struck out definition of "in carloads".
Par. (7). Pub. L. 87–725, §1, excluded from definition of "broker", persons who are independent agents negotiating sales for vendors and whose sales are of frozen fruits and vegetables having an invoice value not exceeding $90,000 in any calendar year.
Pars. (9), (10). Pub. L. 87–725, §2, added pars. (9) and (10).
1940—Par. (4). Act June 29, 1940, §1, designated existing provisions as cl. (A) and added cl. (B).
Par. (6)(C). Act June 29, 1940, §2, inserted ", or consists of cherries in brine," after "ice".
1937—Par. (6)(C). Act Aug. 20, 1937, inserted "unless such product is frozen or packed in ice within the meaning of paragraph 4 of this section" after "foreign commerce".
1934—Par. (6)(C). Act Apr. 13, 1934, added cl. (C).
Statutory Notes and Related Subsidiaries
Effective Date of 1981 Amendment
Amendment by Pub. L. 97–98 effective Dec. 22, 1981, see section 1801 of Pub. L. 97–98, set out as an Effective Date note under section 4301 of this title.
Effective Date of 1978 Amendment
Pub. L. 95–562, §1(a), Nov. 1, 1978, 92 Stat. 2381, provided that the amendment made by section 1(a) of Pub. L. 95–562 is effective Jan. 1, 1979.
Short Title of 1995 Amendment
Pub. L. 104–48, §1(a), Nov. 15, 1995, 109 Stat. 424, provided that: "This Act [amending this section and sections 499b, 499c to 499f, and 499h of this title and repealing provisions set out as a note under section 499f of this title] may be cited as the 'Perishable Agricultural Commodities Act Amendments of 1995'."
Study of Domestic Fruit and Vegetable Industry
Pub. L. 101–624, title XIII, §§1301–1305, Nov. 28, 1990, 104 Stat. 3559, 3560, provided that:
"SEC. 1301. FINDINGS.
"Congress finds that—
"(1) fruits, vegetables, and specialty crops are a vital and important source of nutrition for the general health and welfare of the people of the United States; and
"(2) fruits and vegetables are recommended as an essential part of a healthy, nutritious diet by numerous health officials and organizations including the Surgeon General of the United States; the National Institutes of Health; the National Cancer Institute; the American Heart Association; the Committee on Diet, Nutrition and Cancer of the National Academy of Sciences; the Department of Agriculture; and the Department of Health and Human Services.
"SEC. 1302. PURPOSES.
"The purposes of this subtitle [subtitle A (§§1301–1309) of Pub. L. 101–624, enacting section 499b–1 of this title, amending sections 608c and 608e–1 of this title, and enacting this note] are to—
"(1) improve the Nation's dietary and nutritional standards by promoting domestically produced wholesome and nutritious fruit and vegetable products;
"(2) increase the public awareness as to the difficulties domestic producers experience regarding the production, harvesting, and marketing of these products; and
"(3) aid in the development of new technology and techniques that will assist domestic producers in meeting the challenges of increased demands for fruit and vegetable products in the future.
"SEC. 1303. DECLARATION.
"Congress declares that the domestic production of fruits and vegetables is an integral part of this Nation's farm policy.
"SEC. 1304. STUDY OF THE FRUIT AND VEGETABLE INDUSTRY.
"(a)
"(1)
"(2)
"(A) a review of the availability of an adequate labor supply for maintaining and harvesting of fruits and vegetables;
"(B) a review of the availability of crop insurance or disaster assistance for fruit and vegetable producers;
"(C) a review of scientific and technological advances in the areas of genetics, biotechnology, integrated pest management, post harvest protection, and other scientific developments related to the production and marketing of fruits and vegetables;
"(D) an examination of the availability of safe and effective chemicals for use in the production of fruits and vegetables, and an evaluation of the value of national uniformity to both consumers and producers;
"(E) a review of the requirements and cost of labeling fruits and vegetables in the industry, and the benefits that would result from the labeling of such products; and
"(F) a review of Federal educational programs that teach the importance of fruits and vegetables to a proper diet.
"(b)
"(1) the recommendations of the Secretary concerning the manner in which producers of domestic fruit and vegetable commodities that are not receiving assistance under the programs that provide market enhancement assistance (such as the export enhancement program under subtitle B of title XI of the Food Security Act of 1985 (7 U.S.C. 1736p et seq.) to producers of domestic fruit and vegetable commodities, could participate in such programs; and
"(2) the recommendations to the Secretary concerning the establishment of additional programs of the type described in paragraph (1) to assist producers of domestic fruit and vegetable commodities in increasing their production and in expanding domestic and foreign markets for the products of such producers.
"SEC. 1305. COUNTRY OF ORIGIN LABELING PROGRAMS.
"(a)
"(b)
"(1)
"(2)
"(A)
"(B)
"(i)
"(ii)
"(C)
"(c)
Potato Dealers
Pub. L. 95–562, §1(b), Nov. 1, 1978, 92 Stat. 2381, provided in part that no person buying potatoes for processing solely within the State where grown shall be deemed or considered to be a dealer under par. (6) of this section, as amended by section 1(b) of Pub. L. 95–562, until Jan. 1, 1982.
§499b. Unfair conduct
It shall be unlawful in or in connection with any transaction in interstate or foreign commerce:
(1) For any commission merchant, dealer, or broker to engage in or use any unfair, unreasonable, discriminatory, or deceptive practice in connection with the weighing, counting, or in any way determining the quantity of any perishable agricultural commodity received, bought, sold, shipped, or handled in interstate or foreign commerce.
(2) For any dealer to reject or fail to deliver in accordance with the terms of the contract without reasonable cause any perishable agricultural commodity bought or sold or contracted to be bought, sold, or consigned in interstate or foreign commerce by such dealer.
(3) For any commission merchant to discard, dump, or destroy without reasonable cause, any perishable agricultural commodity received by such commission merchant in interstate or foreign commerce.
(4) For any commission merchant, dealer, or broker to make, for a fraudulent purpose, any false or misleading statement in connection with any transaction involving any perishable agricultural commodity which is received in interstate or foreign commerce by such commission merchant, or bought or sold, or contracted to be bought, sold, or consigned, in such commerce by such dealer, or the purchase or sale of which in such commerce is negotiated by such broker; or to fail or refuse truly and correctly to account and make full payment promptly in respect of any transaction in any such commodity to the person with whom such transaction is had; or to fail, without reasonable cause, to perform any specification or duty, express or implied, arising out of any undertaking in connection with any such transaction; or to fail to maintain the trust as required under section 499e(c) of this title. However, this paragraph shall not be considered to make the good faith offer, solicitation, payment, or receipt of collateral fees and expenses, in and of itself, unlawful under this chapter.
(5) For any commission merchant, dealer, or broker to misrepresent by word, act, mark, stencil, label, statement, or deed, the character, kind, grade, quality, quantity, size, pack, weight, condition, degree of maturity, or State, country, or region of origin of any perishable agricultural commodity received, shipped, sold, or offered to be sold in interstate or foreign commerce. However, any commission merchant, dealer, or broker who has violated—
(A) any provision of this paragraph may, with the consent of the Secretary, admit the violation or violations; or
(B) any provision of this paragraph relating to a misrepresentation by mark, stencil, or label shall be permitted by the Secretary to admit the violation or violations if such violation or violations are not repeated or flagrant;
and pay, in the case of a violation under either clause (A) or (B) of this paragraph, a monetary penalty not to exceed $2,000 in lieu of a formal proceeding for the suspension or revocation of license, any payment so made to be deposited into the Treasury of the United States as miscellaneous receipts. A person other than the first licensee handling misbranded perishable agricultural commodities shall not be held liable for a violation of this paragraph by reason of the conduct of another if the person did not have knowledge of the violation or lacked the ability to correct the violation.
(6) For any commission merchant, dealer, or broker, for a fraudulent purpose, to remove, alter, or tamper with any card, stencil, stamp, tag, or other notice placed upon any container or railroad car containing any perishable agricultural commodity, if such card, stencil, stamp, tag, or other notice contains a certificate or statement under authority of any Federal or State inspector or in compliance with any Federal or State law or regulation as to the grade or quality of the commodity contained in such container or railroad car or the State or country in which such commodity was produced.
(7) For any commission merchant, dealer or broker, without the consent of an inspector, to make, cause, or permit to be made any change by way of substitution or otherwise in the contents of a load or lot of any perishable agricultural commodity after it has been officially inspected for grading and certification, but this shall not prohibit re-sorting and discarding inferior produce.
(June 10, 1930, ch. 436, §2, 46 Stat. 532; Apr. 13, 1934, ch. 120, §§2, 3, 48 Stat. 585; June 19, 1936, ch. 602, §1, 49 Stat. 1533; Aug. 20, 1937, ch. 719, §§2–4, 50 Stat. 725, 726; June 29, 1940, ch. 456, §§3, 4, 54 Stat. 696; Apr. 6, 1942, ch. 211, 56 Stat. 200; July 30, 1956, ch. 786, §1, 70 Stat. 726; Pub. L. 93–369, Aug. 10, 1974, 88 Stat. 423; Pub. L. 97–352, §1, Oct. 18, 1982, 96 Stat. 1667; Pub. L. 98–273, §2, May 7, 1984, 98 Stat. 166; Pub. L. 104–48, §§9(b), 10, Nov. 15, 1995, 109 Stat. 430.)
Editorial Notes
Codification
Section was formerly classified to section 552 of this title.
Amendments
1995—Pub. L. 104–48, §9(b)(1), substituted "commerce:" for "commerce—" in introductory provisions.
Pars. (1) to (3). Pub. L. 104–48, §9(b)(2), substituted period for semicolon at end.
Par. (4). Pub. L. 104–48, §9(b)(2), (3), substituted period for semicolon after "section 499e(c) of this title" and inserted at end "However, this paragraph shall not be considered to make the good faith offer, solicitation, payment, or receipt of collateral fees and expenses, in and of itself, unlawful under this chapter."
Par. (5). Pub. L. 104–48, §§9(b)(2), 10, substituted "foreign commerce. However," for "foreign commerce: Provided, That", substituted period for semicolon after "miscellaneous receipts", and inserted at end "A person other than the first licensee handling misbranded perishable agricultural commodities shall not be held liable for a violation of this paragraph by reason of the conduct of another if the person did not have knowledge of the violation or lacked the ability to correct the violation."
Par. (6). Pub. L. 104–48, §9(b)(2), substituted period for semicolon at end.
1984—Par. (4). Pub. L. 98–273 inserted "or to fail to maintain the trust as required under section 499e(c) of this title;".
1982—Par. (5). Pub. L. 97–352 substituted "Provided, That any commission merchant, dealer, or broker who has violated (A) any provision of this paragraph may, with the consent of the Secretary, admit the violation or violations; or (B) any provision of this paragraph relating to a misrepresentation by mark, stencil, or label shall be permitted by the Secretary to admit the violation or violations if such violation or violations are not repeated or flagrant; and pay, in the case of a violation under either clause (A) or (B) of this paragraph," for "Provided, That any commission merchant, dealer, or broker who has violated this paragraph may, with the consent of the Secretary, admit the violation or violations and pay".
1974—Par. (5). Pub. L. 93–369 inserted proviso for consent admission of violations, payment of monetary penalty not in excess of $2,000 in lieu of formal proceedings for suspension or revocation of license, and for deposit of the payments into the Treasury of the United States as miscellaneous receipts.
1956—Par. (5). Act July 30, 1956, struck out "for a fraudulent purpose" after "broker", and included misrepresentation of region of origin.
1942—Par. (4). Act Apr. 6, 1942, inserted "and make full payment" and "or to fail, without reasonable cause, to perform any specification or duty, express or implied, arising out of any undertaking in connection with any such transaction".
1940—Par. (1). Act June 29, 1940, §3, among other changes, inserted "dealer" after "merchant".
Par. (5). Act June 29, 1940, inserted "quantity, size, pack, weight" after "quality".
1937—Par. (5). Act Aug. 20, 1937, §2, among other changes, inserted "mark, stencil, label, statement" after "act" and "the character, kind, grade, quality, condition, degree of maturity" after "or deed".
Par. (6). Act Aug. 20, 1937, §3, inserted "or in compliance with any Federal or State law or regulation" after "inspector".
Par. (7). Act Aug. 20, 1937, §4, added par. (7).
1936—Par. (4). Act June 17, 1936, struck out "or concerning the condition of the market for" after "involving".
1934—Par. (2). Act Apr. 13, 1934, §2, inserted "or consigned" after "sold".
Par. (4). Act Apr. 13, 1934, §3, substituted "in connection with any transaction involving or concerning" for "concerning the condition, quality, quantity or disposition of" and inserted "or consigned" after "contracted to be bought or sold".
§499b–1. Products produced in distinct geographic areas
(a) In general
In the case of a perishable agricultural commodity (as defined under the Perishable Agricultural Commodity Act (7 U.S.C. 499a(4))— 1
(1) subject to a Federal marketing order under the Agricultural Marketing Agreement Act of 1937 (7 U.S.C. 601 et seq.);
(2) traditionally identified as being produced in a distinct geographic area, State, or region; and
(3) the unique identity, based on such distinct geographic area, of which has been promoted with funds collected through producer contributions pursuant to such marketing order,
no person may use the unique name or geographical designation of such commodity to promote the sale of a similar commodity produced outside such area, State, or region.
(b) Penalties
A violation of this section shall be considered a violation of paragraphs (4) and (5) of section 2 of the Perishable Agricultural Commodities Act (7 U.S.C. 499b(4) and (5)).
(c) Reimbursement
A person bringing a complaint under this section shall reimburse the Secretary of Agriculture for any and all costs associated with the enforcement of this section.
(d) Prohibition
The Secretary of Agriculture shall not increase any fees charged under the Perishable Agricultural Commodities Act [7 U.S.C. 499a et seq.] to offset costs associated with the operation of this section.
(e) Regulations
The Secretary shall promulgate regulations to carry out this section.
(Pub. L. 101–624, title XIII, §1309, Nov. 28, 1990, 104 Stat. 3562.)
Editorial Notes
References in Text
The Perishable Agricultural Commodity Act, and the Perishable Agricultural Commodities Act, referred to in subsecs. (a), (b), and (d), probably mean the Perishable Agricultural Commodities Act, 1930, act June 10, 1930, ch. 436, 46 Stat. 531, which is classified generally to this chapter (§499a et seq.). For complete classification of this Act to the Code, see section 499a(a) of this title and Tables.
7 U.S.C. 499a(4), referred to in subsec. (a), was redesignated 7 U.S.C. 499a(b)(4) by Pub. L. 102–237, title X, §1011(1)(A), Dec. 13, 1991, 105 Stat. 1898.
The Agricultural Marketing Agreement Act of 1937 (7 U.S.C. 601 et seq.), referred to in subsec. (a)(1), is act June 3, 1937, ch. 296, 50 Stat. 246, which is classified principally to chapter 26A (§671 et seq.) of this title. For complete classification of this Act to the Code, see section 674 of this title and Tables. The Agricultural Marketing Agreement Act of 1937 reenacted and amended the Agricultural Adjustment Act, title I of act May 12, 1933, ch. 25, 48 Stat. 31, as amended, which is classified generally to chapter 26 (§601 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 601 of this title and Tables.
Codification
Section was enacted as part of the Food, Agriculture, Conservation, and Trade Act of 1990, and not as part of the Perishable Agricultural Commodities Act, 1930 which comprises this chapter.
1 See References in Text note below.
§499c. Licenses
(a) License required; penalties for violations
After December 10, 1930, no person shall at any time carry on the business of a commission merchant, dealer, or broker without a license valid and effective at such time. Any person who violates any provision of this subsection shall be liable to a penalty of not more than $1,000 for each such offense and not more than $250 for each day it continues, which shall accrue to the United States and may be recovered in a civil suit brought by the United States.
Any person violating this provision may, upon a showing satisfactory to the Secretary of Agriculture, or his authorized representative, that such violation was not willful but was due to inadvertence, be permitted by the Secretary, or such representative, to settle his liability in the matter by the payment of the fees due for the period covered by such violation and an additional sum, not in excess of $250, to be fixed by the Secretary of Agriculture or his authorized representative. Such payment shall be deposited in the Treasury of the United States in the same manner as regular license fees.
(b) Application and fees for licenses
(1) Application for license
Any person desiring any such license shall make application to the Secretary. The Secretary may by regulation prescribe the information to be contained in such application and to be furnished thereafter.
(2) License fees
Upon the filing of an application under paragraph (1), the applicant shall pay such license fees, both individually and in the aggregate, as the Secretary determines necessary to meet the reasonably anticipated expenses for administering this chapter and the Act to prevent the destruction or dumping of farm produce, approved March 3, 1927 (7 U.S.C. 491–497). Thereafter, the licensee shall pay such license fees annually or at such longer interval as the Secretary may prescribe. The Secretary shall take due account of savings to the program when determining an appropriate interval for renewal of licenses. The Secretary shall establish and alter license fees only by rulemaking under section 553 of title 5, except that the Secretary may not alter the fees required under paragraph (3) or (4) for retailers and grocery wholesalers that are dealers. Effective on November 15, 1995, and until such time as the Secretary alters such fees by rule, an individual license fee shall equal $550 per year, plus $200 for each branch or additional business facility operated by the applicant in excess of nine such facilities, as determined by the Secretary, subject to an annual aggregate limit of $4,000 per licensee. Any increase in license fees prescribed by the Secretary under this paragraph shall not take effect unless the Secretary determines that, without such increase, the funds on hand as of the end of the fiscal year in which the increase takes effect will be less than 25 percent of the projected budget to administer this chapter and such Act for the next fiscal year. In no case may a license fee increase by the Secretary take effect before the end of the three-year period beginning on November 15, 1995.
(3) One-time fee for retailers and grocery wholesalers that are dealers
During the three-year period beginning on November 15, 1995, a retailer or grocery wholesaler making an initial application for a license under this section shall pay the license fee required under subparagraph (A), (B), or (C) of paragraph (4) for license renewals in the year in which the initial application is made. After the end of such period, a retailer or grocery wholesaler making an initial application for a license under this section shall pay an administrative fee equal to $100. In either case, a retailer or grocery wholesaler paying a fee under this paragraph shall not be required to pay any fee for renewal of the license for subsequent years.
(4) Gradual elimination of annual fees for retailers and grocery wholesalers that are dealers
In the case of a retailer or grocery wholesaler that holds a license under this section as of November 15, 1995, payments for the renewal of the license shall be made pursuant to the following schedule:
(A) For anniversary dates occurring during the one-year period beginning on November 15, 1995, the licensee shall pay a renewal fee in an amount equal to 100 percent of the applicable renewal fee (subject to the $4,000 aggregate limit on such payments) in effect under this subsection on the day before November 15, 1995.
(B) For anniversary dates occurring during the one-year period beginning at the end of the period in subparagraph (A), the licensee shall pay a renewal fee in an amount equal to 75 percent of the amount paid by the licensee under subparagraph (A).
(C) For anniversary dates occurring during the one-year period beginning at the end of the period in subparagraph (B), the licensee shall pay a renewal fee in an amount equal to 50 percent of the amount paid by the licensee under subparagraph (A).
(D) After the end of the three-year period beginning on November 15, 1995, the licensee shall not be required to pay any fee if the licensee seeks renewal of the license.
(5) Perishable Agricultural Commodities Act Fund
Such fee, when collected, shall be deposited in the Treasury of the United States as a special fund, without fiscal year limitation, to be designated as the "Perishable Agricultural Commodities Act Fund", which shall be available for all expenses necessary to the administration of this chapter and the Act approved March 3, 1927, referred to above. Any reserve funds in the Perishable Agricultural Commodities Act Fund may be invested by the Secretary in insured or fully-collateralized interest-bearing accounts or, at the discretion of the Secretary, by the Secretary of the Treasury in United States Government debt instruments. Any interest earned on such reserve funds shall be credited to the Perishable Agricultural Commodities Act Fund and shall be available for the same purposes as the fees deposited in such fund. Financial statements prescribed by the Director of the Office of Management and Budget for the last completed fiscal year, and as estimated for the current and ensuing fiscal years, shall be included in the budget as submitted to the Congress annually.
(c) Use of trade names
A licensee may conduct business in more than one trade name or change the name under which business is conducted without requiring an additional or new license. The Secretary may disapprove the use of a trade name if, in his opinion, the use of the trade name by the licensee would be deceptive, misleading, or confusing to the trade, and the Secretary may, after notice and opportunity for a hearing, suspend for a period not to exceed ninety days the license of any licensee who continues to use a trade name which the Secretary has disapproved for use by such licensee. The Secretary may refuse to issue a license to an applicant if he finds that the trade name in which the applicant proposes to do business would be deceptive, misleading, or confusing to the trade if used by such applicant.
(June 10, 1930, ch. 436, §3, 46 Stat. 533; Aug. 20, 1937, ch. 719, §5, 50 Stat. 726; June 15, 1950, ch. 254, §1, 64 Stat. 217; July 30, 1956, ch. 786, §2(a), 70 Stat. 726; Pub. L. 87–725, §§3, 4, Oct. 1, 1962, 76 Stat. 673, 674; Pub. L. 91–107, §3, Nov. 4, 1969, 83 Stat. 182; 1970 Reorg. Plan No. 2, §102, eff. July 1, 1970, 35 F.R. 7959, 84 Stat. 2085; Pub. L. 95–562, §2, Nov. 1, 1978, 92 Stat. 2381; Pub. L. 97–98, title XI, §1115(b), Dec. 22, 1981, 95 Stat. 1269; Pub. L. 100–414, §1, Aug. 22, 1988, 102 Stat. 1102; Pub. L. 101–624, title XIII, §1361, Nov. 28, 1990, 104 Stat. 3568; Pub. L. 104–48, §§3–4(b), 5(a), Nov. 15, 1995, 109 Stat. 425–427.)
Editorial Notes
References in Text
The Act to prevent the destruction or dumping of farm produce, approved March 3, 1927, referred to in subsec. (b)(2), (5), is act Mar. 3, 1927, ch. 309, 44 Stat. 1355, which is classified generally to chapter 20 (§491 et seq.) of this title. For complete classification of this Act to the Code, see Tables.
Codification
Section was formerly classified to section 553 of this title.
Amendments
1995—Pub. L. 104–48, §3(b)(1), reenacted section catchline without change.
Subsec. (a). Pub. L. 104–48, §§3(b)(1), 5(a), inserted heading and substituted "$1,000" for "$500" in first paragraph and "$250" for "$25" in two places.
Subsec. (b). Pub. L. 104–48, §3(b)(2), inserted heading.
Subsec. (b)(1). Pub. L. 104–48, §3(a)(1), (2), inserted heading, realigned margins, and struck out after second sentence "Upon the filing of the application, and annually thereafter, the applicant shall pay such fee as the Secretary determines necessary to meet the reasonably anticipated expenses for administering this chapter and the Act to prevent the destruction or dumping of farm produce, approved March 3, 1927 (7 U.S.C. 491–497), but in no event shall such fee exceed $400, plus $200 for each branch or additional business facility operated by the applicant in excess of nine such facilities, as determined by the Secretary. Total annual fees for any applicant shall not exceed $4,000 in the aggregate."
Subsec. (b)(2). Pub. L. 104–48, §4(a), added par. (2).
Subsec. (b)(3), (4). Pub. L. 104–48, §3(a)(5), added pars. (3) and (4).
Subsec. (b)(5). Pub. L. 104–48, §§3(a)(3), (4), 4(b), designated provisions of subsec. (b) relating to Perishable Agricultural Commodities Act Fund as par. (5), inserted heading, realigned margins, and struck out "The amount of money accumulated and on hand in the special fund at the end of any fiscal year shall not exceed 25 percent of the projected budget for the next following fiscal year." after "fees deposited in such fund." and "The Secretary shall give public notice of any increase to be made in the annual fee prescribed by him hereunder and shall allow a reasonable time prior to the effective date of such increase for interested persons to file their views on or objections to such increase." after "budget as submitted to the Congress annually."
Subsec. (c). Pub. L. 104–48, §3(b)(3), inserted heading.
1990—Subsec. (b). Pub. L. 101–624 substituted ". Any reserve funds in the Perishable Agricultural Commodities Act Fund may be invested by the Secretary in insured or fully-collateralized interest-bearing accounts or, at the discretion of the Secretary, by the Secretary of the Treasury in United States Government debt instruments. Any interest earned on such reserve funds shall be credited to the Perishable Agricultural Commodities Act Fund and shall be available for the same purposes as the fees deposited in such fund. The" for ": Provided, That the" and ". Financial" for ": Provided further, That financial".
1988—Subsec. (b). Pub. L. 100–414 substituted "$400, plus $200" for "$300, plus $150" and "$4,000" for "$3,000".
1981—Subsec. (b). Pub. L. 97–98 substituted "$300", "$150", and "$3,000" for "$150", "$50", and "$1,000", respectively.
1978—Subsec. (b). Pub. L. 95–562 substituted "in such application and to be furnished thereafter" for "in such application" and "$150, plus $50 for each branch or additional business facility operated by the applicant in excess of nine such facilities, as determined by the Secretary" for "$100", and inserted provisions limiting the total annual fees for any applicant to an amount not to exceed $1,000 in the aggregate and limiting the amount of money in the special fund at the end of any fiscal year to an amount not to exceed 25 percent of the projected budget for the next following fiscal year.
1969—Subsec. (b). Pub. L. 91–107 increased limitation on fees from $50 to $100.
1962—Subsec. (b). Pub. L. 87–725, §3, increased annual fee from a maximum of $25, to such fee as the Secretary determines necessary to meet the expenses of administering this chapter and the Act approved March 3, 1927, but not exceeding $50, directed the Secretary to give public notice of any increase in the annual fee and to allow reasonable time before the effective date of such increase for submission of views on, or objections to, such increase, and struck out references to the availability of the Perishable Agricultural Commodities Act Fund for administrative expenses of sections 581 to 589 of this title.
Subsec. (c). Pub. L. 87–725, §4, added subsec. (c).
1956—Subsec. (b). Act July 30, 1956, increased fee from $15 annually to not more than $25 annually.
1950—Subsec. (b). Act June 15, 1950, increased fee from $10 to $15 annually, provided for its disposition in fund, made fund available for administrative expenses, and provided for financial statements.
1937—Subsec. (a). Act Aug. 20, 1937, added second par.
Statutory Notes and Related Subsidiaries
Effective Date of 1981 Amendment
Amendment by Pub. L. 97–98 effective Dec. 22, 1981, see section 1801 of Pub. L. 97–98, set out as an Effective Date note under section 4301 of this title.
Executive Documents
Transfer of Functions
Functions vested by law (including reorganization plan) in Bureau of the Budget or Director of Bureau of the Budget transferred to President by section 101 of 1970 Reorg. Plan No. 2. Section 102 of 1970 Reorg. Plan No. 2 redesignated Bureau of the Budget as Office of Management and Budget and offices of Director of Bureau of the Budget, Deputy Director of Bureau of the Budget, and Assistant Directors of Bureau of the Budget as Director of Office of Management and Budget, Deputy Director of Office of Management and Budget, and Assistant Directors of Office of Management and Budget, respectively. Section 103 of 1970 Reorg. Plan No. 2 transferred all records, property, personnel, and funds of Bureau to Office of Management and Budget. See part I of Reorg. Plan No. 2 of 1970, set out in the Appendix to Title 5, Government Organization and Employees.
§499d. Issuance of license
(a) Authority to do business; termination; renewal
Whenever an applicant has paid the prescribed fee the Secretary, except as provided elsewhere in this chapter, shall issue to such applicant a license, which shall entitle the licensee to do business as a commission merchant and/or dealer and/or broker unless and until it is suspended or revoked by the Secretary in accordance with the provisions of this chapter, or is automatically suspended under section 499g(d) of this title, but said license shall automatically terminate on the anniversary date of the license at the end of the annual or multiyear period covered by the license fee unless the licensee submits the required renewal application and pays the applicable renewal fee (if such fee is required): Provided, That notice of the necessity of renewing the license and of paying the renewal fee (if such fee is required) shall be mailed at least thirty days before the anniversary date: Provided, further, That if the renewal fee (if required) is not paid by the anniversary date the licensee may obtain a renewal of that license at any time within thirty days by paying the fee provided in section 499c(b) of this title, plus $50, which shall be deposited in the Perishable Agricultural Commodities Act fund provided for by section 499c(b) of this title: And provided further, That the license of any licensee shall terminate upon said licensee, or in case the licensee is a partnership, any partner, being discharged as a bankrupt, unless the Secretary finds upon examination of the circumstances of such bankruptcy, which he shall examine if requested to do so by said licensee, that such circumstances do not warrant such termination.
(b) Refusal of license; grounds
The Secretary shall refuse to issue a license to an applicant if he finds that the applicant, or any person responsibly connected with the applicant, is prohibited from employment with a licensee under section 499h(b) of this title or is a person who, or is or was responsibly connected with a person who—
(A) has had his license revoked under the provisions of section 499h of this title within two years prior to the date of the application or whose license is currently under suspension;
(B) within two years prior to the date of application has been found after notice and opportunity for hearing to have committed any flagrant or repeated violation of section 499b of this title, but this provision shall not apply to any case in which the license of the person found to have committed such violation was suspended and the suspension period has expired or is not in effect;
(C) within two years prior to the date of the application, has been found guilty in a Federal court of having violated the provisions of sections 491, 493 to 497 of this title, relating to the prevention of destruction and dumping of farm produce; or
(D) has failed, except in the case of bankruptcy and subject to his right of appeal under section 499g(c) of this title, to pay any reparation order issued against him within two years prior to the date of the application.
(c) Issuance of license upon furnishing bond; issuance after three years without bond; effect of termination of bond; increase or decrease in amount; payment of increase
An applicant ineligible for a license by reason of the provisions of subsection (b) of this section may, upon the expiration of the two-year period applicable to him, be issued a license by the Secretary if such applicant furnishes a surety bond in the form and amount satisfactory to the Secretary as assurance that his business will be conducted in accordance with this chapter and that he will pay all reparation orders which may be issued against him in connection with transactions occurring within four years following the issuance of the license, subject to his right of appeal under section 499g(c) of this title. In the event such applicant does not furnish such a surety bond, the Secretary shall not issue a license to him until three years have elapsed after the date of the applicable order of the Secretary or decision of the court on appeal. If the surety bond so furnished is terminated for any reason without the approval of the Secretary the license shall be automatically canceled as of the date of such termination and no new license shall be issued to such person during the four-year period without a new surety bond covering the remainder of such period. The Secretary, based on changes in the nature and volume of business conducted by a bonded licensee, may require an increase or authorize a reduction in the amount of the bond. A bonded licensee who is notified by the Secretary to provide a bond in an increased amount shall do so within a reasonable time to be specified by the Secretary, and upon failure of the licensee to provide such bond his license shall be automatically suspended until such bond is provided. The Secretary may not issue a license to an applicant under this subsection if the applicant or any person responsibly connected with the applicant is prohibited from employment with a licensee under section 499h(b) of this title.
(d) Withholding license pending investigation
The Secretary may withhold the issuance of a license to an applicant, for a period not to exceed thirty days pending an investigation, for the purpose of determining (a) whether the applicant is unfit to engage in the business of a commission merchant, dealer, or broker because the applicant, or in case the applicant is a partnership, any general partner, or in case the applicant is a corporation, any officer or holder of more than 10 per centum of the stock, prior to the date of the filing of the application engaged in any practice of the character prohibited by this chapter or was convicted of a felony in any State or Federal court, or (b) whether the application contains any materially false or misleading statement or involves any misrepresentation, concealment, or withholding of facts respecting any violation of the chapter by any officer, agent, or employee of the applicant. If after investigation the Secretary believes that the applicant should be refused a license, the applicant shall be given an opportunity for hearing within sixty days from the date of the application to show cause why the license should not be refused. If after the hearing the Secretary finds that the applicant is unfit to engage in the business of a commission merchant, dealer, or broker because the applicant, or in case the applicant is a partnership, any general partner, or in case the applicant is a corporation, any officer or holder of more than 10 per centum of the stock, prior to the date of the filing of the application engaged in any practice of the character prohibited by this chapter or was convicted of a felony in any State or Federal court, or because the application contains a materially false or misleading statement made by the applicant or by its representative on its behalf, or involves a misrepresentation, concealment, or withholding of facts respecting any violation of the chapter by any officer, agent, or employee, the Secretary may refuse to issue a license to the applicant.
(e) Refusal of license
The Secretary may refuse to issue a license to an applicant if he finds that the applicant, or in case the applicant is a partnership, any general partner, or in case the applicant is a corporation, any officer or holder of more than 10 per centum of the stock, has, within three years prior to the date of the application, been adjudicated or discharged as a bankrupt, or was a general partner of a partnership or officer or holder of more than 10 per centum of the stock of a corporation adjudicated or discharged as a bankrupt, and if he finds that the circumstances of such bankruptcy warrant such a refusal, unless the applicant furnishes a bond of such nature and amount as may be determined by the Secretary or other assurance satisfactory to the Secretary that the business of the applicant will be conducted in accordance with this chapter.
(June 10, 1930, ch. 436, §4, 46 Stat. 533; Apr. 13, 1934, ch. 120, §§4–7, 48 Stat. 585, 586; June 19, 1936, ch. 602, §2, 49 Stat. 1533; Aug. 20, 1937, ch. 719, §6, 50 Stat. 726; June 15, 1950, ch. 254, §2, 64 Stat. 218; July 30, 1956, ch. 786, §§2(b), 3, 4, 70 Stat. 726; Pub. L. 87–725, §§5–7, Oct. 1, 1962, 76 Stat. 674; Pub. L. 95–598, title III, §303, Nov. 6, 1978, 92 Stat. 2673; Pub. L. 102–237, title X, §1011(2), Dec. 13, 1991, 105 Stat. 1898; Pub. L. 104–48, §§4(c), 5(b), 12(c), Nov. 15, 1995, 109 Stat. 427, 431.)
Editorial Notes
Codification
Section was formerly classified to section 554 of this title.
Amendments
1995—Subsec. (a). Pub. L. 104–48, §§4(c), 5(b), substituted "the anniversary date of the license at the end of the annual or multiyear period covered by the license fee unless the licensee submits the required renewal application and pays the applicable renewal fee (if such fee is required)" for "any anniversary date thereof unless the annual fee has been paid" in provisions before first proviso, "the necessity of renewing the license and of paying the renewal fee (if such fee is required)" for "the necessity of paying the annual fee" in first proviso and "renewal fee (if required)" for "annual fee" and "plus $50" for "plus $5" in second proviso.
Subsec. (b). Pub. L. 104–48, §12(c)(1), inserted "is prohibited from employment with a licensee under section 499h(b) of this title or" after "with the applicant," in introductory provisions.
Subsec. (c). Pub. L. 104–48, §12(c)(2), inserted at end "The Secretary may not issue a license to an applicant under this subsection if the applicant or any person responsibly connected with the applicant is prohibited from employment with a licensee under section 499h(b) of this title."
1991—Subsec. (a). Pub. L. 102–237 substituted "annual" for "anual" before "fee has been paid".
1978—Subsec. (a). Pub. L. 95–598, §303(a), inserted ", unless the Secretary finds upon examination of the circumstances of such bankruptcy, which he shall examine if requested to do so by said licensee, that such circumstances do not warrant such termination".
Subsec. (e). Pub. L. 95–598, §303(b), inserted "and if he finds that the circumstances of such bankruptcy warrant such a refusal,".
1962—Subsec. (a). Pub. L. 87–725, §5, inserted proviso that the license of any licensee shall terminate, if he, or in case the licensee is a partnership, any partner, is discharged as a bankrupt.
Subsec. (b). Pub. L. 87–725, §6, amended subsection generally, and among other changes, required refusal of a license upon showing responsible connection by the applicant, or by any person responsibly connected with him, with a person guilty of the specified conduct, without requiring that the applicant was responsible in whole or in part for such conduct, and upon the grounds specified in clause (C) relating to being found guilty in a Federal court of having violated the provisions of sections 491, 493 to 497 of this title, provided that the provisions regarding flagrant or repeated violation of section 499b of this title shall not apply where the license in such case was suspended and the suspension period has expired or is not in effect, and eliminated provisions which, notwithstanding the grounds for refusal specified in the section, permitted the Secretary to issue a license upon the applicant furnishing a bond or other satisfactory assurance that his business would be conducted in accordance with this chapter, and that he would pay reparation orders previously issued against him or which could be issued against him within two years after receiving the license, but such license could not be issued until after the expiration of one year from the revocation or from the finding that the applicant was responsible, for any flagrant or repeated violation of section 499b of this title.
Subsec. (c). Pub. L. 87–725, §7, substituted provisions which permit a license to be issued to an applicant ineligible under subsec. (b) of this section, upon expiration of the two year period applicable to him, if he furnishes a surety bond as assurance that his business will be conducted in accordance with this chapter and that he will pay all reparation orders issued against him in connection with transactions occurring within four years following issuance of license, subject to appeal under section 499g(c) of this title, or if no bond is given, permit issuance of the license after three years from the applicable order, or decision of the court on appeal, and which provide that if a bond is terminated without the Secretary's approval, the license is automatically canceled and cannot be re-issued during the four year period without a new bond, that the Secretary may order an increase or a reduction in the bond, and that a licensee notified to increase the bond must do so in a reasonable time or his license will be suspended until such bond is provided, for provisions which required the Secretary to refuse a license to an applicant, or if the applicant was a partnership, or an association or a corporation, to a partner or officer or any person holding a responsible position therein, respectively, found within two years of being guilty of violating sections 491 to 497 or 499n(b) of this title.
1956—Subsec. (a). Act July 30, 1956, §2(b), substituted "the fee provided in section 499c(b) of this title, plus $5" for "a fee of $20".
Subsec. (d). Act July 30, 1956, §3, included within term "applicant" any general partner of a partnership, and officers or holders of more than 10 per centum of the stock of a corporation, and permitted the Secretary to refuse to issue a license to an applicant who was convicted of a felony in any State or Federal court.
Subsec. (e). Act July 30, 1956, §4, added subsec. (e).
1950—Subsec. (a). Act June 15, 1950, increased fee for late registration from $15 to $20, and provided for its disposition in the fund.
1937—Subsec. (a). Act Aug. 20, 1937, inserted first and second provisos.
Subsec. (b). Act Aug. 20, 1937, among other changes, inserted "Such bond shall be in an amount sufficient in the judgment of the Secretary of Agriculture to insure payment of such reparation orders" at the end.
Subsecs. (c), (d). Act Aug. 20, 1937, amended subsecs. (c) and (d) generally.
1936—Subsec. (b). Act June 19, 1936, among other changes, inserted "if he finds" after "or (3)" and "or (5)" after "section 499b".
1934—Subsec. (b). Act Apr. 13, 1934, §4, among other changes, added cls. (3) and (4).
Subsecs. (c) to (e). Act Apr. 13, 1934, §§5–7, added subsecs. (c) to (e).
Statutory Notes and Related Subsidiaries
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–598 effective Oct. 1, 1979, see section 402(a) of Pub. L. 95–598, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy.
§499e. Liability to persons injured
(a) Amount of damages
If any commission merchant, dealer, or broker violates any provision of section 499b of this title he shall be liable to the person or persons injured thereby for the full amount of damages (including any handling fee paid by the injured person or persons under section 499f(a)(2) of this title) sustained in consequence of such violation.
(b) Remedies
Such liability may be enforced either (1) by complaint to the Secretary as hereinafter provided, or (2) by suit in any court of competent jurisdiction; but this section shall not in any way abridge or alter the remedies now existing at common law or by statute, and the provisions of this chapter are in addition to such remedies.
(c) Trust on commodities and sales proceeds for benefit of unpaid suppliers, sellers, or agents; preservation of trust; jurisdiction of courts
(1) It is hereby found that a burden on commerce in perishable agricultural commodities is caused by financing arrangements under which commission merchants, dealers, or brokers, who have not made payment for perishable agricultural commodities purchased, contracted to be purchased, or otherwise handled by them on behalf of another person, encumber or give lenders a security interest in, such commodities, or on inventories of food or other products derived from such commodities, and any receivables or proceeds from the sale of such commodities or products, and that such arrangements are contrary to the public interest. This subsection is intended to remedy such burden on commerce in perishable agricultural commodities and to protect the public interest.
(2) Perishable agricultural commodities received by a commission merchant, dealer, or broker in all transactions, and all inventories of food or other products derived from perishable agricultural commodities, and any receivables or proceeds from the sale of such commodities or products, shall be held by such commission merchant, dealer, or broker in trust for the benefit of all unpaid suppliers or sellers of such commodities or agents involved in the transaction, until full payment of the sums owing in connection with such transactions has been received by such unpaid suppliers, sellers, or agents. Payment shall not be considered to have been made if the supplier, seller, or agent receives a payment instrument which is dishonored. The provisions of this subsection shall not apply to transactions between a cooperative association, as defined in section 1141j(a) of title 12, and its members.
(3) The unpaid supplier, seller, or agent shall lose the benefits of such trust unless such person has given written notice of intent to preserve the benefits of the trust to the commission merchant, dealer, or broker within thirty calendar days (i) after expiration of the time prescribed by which payment must be made, as set forth in regulations issued by the Secretary, (ii) after expiration of such other time by which payment must be made, as the parties have expressly agreed to in writing before entering into the transaction, or (iii) after the time the supplier, seller, or agent has received notice that the payment instrument promptly presented for payment has been dishonored. The written notice to the commission merchant, dealer, or broker shall set forth information in sufficient detail to identify the transaction subject to the trust. When the parties expressly agree to a payment time period different from that established by the Secretary, a copy of any such agreement shall be filed in the records of each party to the transaction and the terms of payment shall be disclosed on invoices, accountings, and other documents relating to the transaction.
(4) In addition to the method of preserving the benefits of the trust specified in paragraph (3), a licensee may use ordinary and usual billing or invoice statements to provide notice of the licensee's intent to preserve the trust. The bill or invoice statement must include the information required by the last sentence of paragraph (3) and contain on the face of the statement the following: "The perishable agricultural commodities listed on this invoice are sold subject to the statutory trust authorized by section 5(c) of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499e(c)). The seller of these commodities retains a trust claim over these commodities, all inventories of food or other products derived from these commodities, and any receivables or proceeds from the sale of these commodities until full payment is received.".
(5) The several district courts of the United States are vested with jurisdiction specifically to entertain (i) actions by trust beneficiaries to enforce payment from the trust, and (ii) actions by the Secretary to prevent and restrain dissipation of the trust.
(June 10, 1930, ch. 436, §5, 46 Stat. 534; Aug. 20, 1937, ch. 719, §7, 50 Stat. 728; Pub. L. 98–273, §1, May 7, 1984, 98 Stat. 165; Pub. L. 102–237, title X, §1011(3), Dec. 13, 1991, 105 Stat. 1898; Pub. L. 104–48, §§6, 8(b), Nov. 15, 1995, 109 Stat. 427, 429.)
Editorial Notes
Codification
Section was formerly classified to section 555 of this title.
Amendments
1995—Subsec. (a). Pub. L. 104–48, §8(b), inserted "(including any handling fee paid by the injured person or persons under section 499f(a)(2) of this title)" after "damages".
Subsec. (c)(3). Pub. L. 104–48, §6(a), (b), struck out "and has filed such notice with the Secretary" before "within thirty calendar days" in first sentence and inserted after first sentence "The written notice to the commission merchant, dealer, or broker shall set forth information in sufficient detail to identify the transaction subject to the trust."
Subsec. (c)(4), (5). Pub. L. 104–48, §6(c), added par. (4) and redesignated former par. (4) as (5).
1991—Subsec. (c)(2). Pub. L. 102–237 substituted ", as" for "(as" before "defined".
1984—Subsec. (c). Pub. L. 98–273 added subsec. (c).
1937—Subsec. (a). Act Aug. 20, 1937, struck out "paragraph (1), (2), (3), or (4) of" after "provisions of".
§499f. Complaints, written notifications, and investigations
(a) Reparation complaints
(1) Petition; process
Any person complaining of any violation of any provision of section 499b of this title by any commission merchant, dealer, or broker may, at any time within nine months after the cause of action accrues, apply to the Secretary by petition, which shall briefly state the facts, whereupon, if, in the opinion of the Secretary, the facts therein contained warrant such action, a copy of the complaint thus made shall be forwarded by the Secretary to the commission merchant, dealer, or broker, who shall be called upon to satisfy the complaint, or to answer it in writing, within a reasonable time to be prescribed by the Secretary.
(2) Filing and handling fees
A person submitting a petition to the Secretary under paragraph (1) shall include a filing fee of $60 per petition. If the Secretary determines under paragraph (1) that the facts contained in the petition warrant further action, the person or persons submitting the petition shall submit to the Secretary a handling fee of $300. The Secretary may not forward a copy of the complaint to the commission merchant, dealer, or broker involved until after the Secretary receives the required handling fee. The Secretary shall deposit fees submitted under this paragraph into the Perishable Agricultural Commodities Act Fund provided for by section 499c(b) of this title. The Secretary may alter the fees specified in this paragraph by rulemaking under section 553 of title 5.
(b) Disciplinary violations
Any officer or agency of any State or Territory having jurisdiction over commission merchants, dealers, or brokers in such State or Territory and any other interested person (other than an employee of an agency of the Department of Agriculture administering this chapter) may file, in accordance with rules prescribed by the Secretary, a written notification of any alleged violation of this chapter by any commission merchant, dealer, or broker. In addition, any official certificates of the United States Government or States or Territories of the United States and trust notices filed pursuant to section 499e of this title shall constitute written notification for the purposes of conducting an investigation under subsection (c). The identity of any person filing a written notification under this subsection shall be considered to be confidential information. The identity of such person, and any portion of the notification to the extent that it would indicate the identity of such person, are specifically exempt from disclosure under section 552 of title 5 (commonly known as the Freedom of Information Act), as provided in subsection (b)(3) of such section.
(c) Investigation of complaints and notifications
(1) Commencing or expanding an investigation
If there appears to be, in the opinion of the Secretary, reasonable grounds for investigating a complaint made under subsection (a) or a written notification made under subsection (b), the Secretary shall investigate such complaint or notification. In the course of the investigation, if the Secretary determines that violations of this chapter are indicated other than the alleged violations specified in the complaint or notification that served as the basis for the investigation, the Secretary may expand the investigation to include such additional violations.
(2) Issuance of complaint by Secretary; process
In the opinion of the Secretary, if an investigation under this subsection substantiates the existence of violations of this chapter, the Secretary may cause a complaint to be issued. The Secretary shall have the complaint served by registered mail or certified mail or otherwise on the person concerned and afford such person an opportunity for a hearing thereon before a duly authorized examiner of the Secretary in any place in which the subject of the complaint is engaged in business. However, in complaints wherein the amount claimed as damages does not exceed $30,000, a hearing need not be held and proof in support of the complaint and in support of respondent's answer may be supplied in the form of depositions or verified statements of fact.
(3) Special notification requirements for certain investigations
Whenever the Secretary initiates an investigation on the basis of a written notification made under subsection (b) or expands such an investigation, the Secretary shall promptly notify the subject of the investigation of the existence of the investigation and the nature of the alleged violations of this chapter to be investigated. Not later than 180 days after providing the initial notification, the Secretary shall provide the subject of the investigation with notice of the status of the investigation, including whether the Secretary intends to issue a complaint under paragraph (2), terminate the investigation, or continue or expand the investigation. The Secretary shall provide additional status reports at the request of the subject of the investigation and shall promptly notify the subject of the investigation whenever the Secretary terminates the investigation.
(d) Decisions on complaints
After opportunity for hearing on complaints where the damages claimed exceed the sum of $30,000 has been provided or waived and on complaints where damages claimed do not exceed the sum of $30,000 not requiring hearing as provided herein, the Secretary shall determine whether or not the commission merchant, dealer, or broker has violated any provision of section 499b of this title.
(e) Bond required for certain complaints
In case a complaint is made by a nonresident of the United States, or by a resident of the United States to whom the claim of a nonresident of the United States has been assigned, the complainant shall be required, before any formal action is taken on his complaint, to furnish a bond in double the amount of the claim conditioned upon the payment of costs, including a reasonable attorney's fee for the respondent if the respondent shall prevail, and any reparation award that may be issued by the Secretary of Agriculture against the complainant on any counter claim by respondent: Provided, That the Secretary shall have authority to waive the furnishing of a bond by a complainant who is a resident of a country which permits the filing of a complaint by a resident of the United States without the furnishing of a bond.
(June 10, 1930, ch. 436, §6, 46 Stat. 534; Apr. 13, 1934, ch. 120, §§8–10, 48 Stat. 586, 587; Aug. 20, 1937, ch. 719, §§8, 9, 50 Stat. 728; Pub. L. 86–507, §1(4), June 11, 1960, 74 Stat. 200; Pub. L. 87–725, §8, Oct. 1, 1962, 76 Stat. 675; Pub. L. 92–231, §1, Feb. 15, 1972, 86 Stat. 38; Pub. L. 97–98, title XI, §1115(c), Dec. 22, 1981, 95 Stat. 1270; Pub. L. 97–352, §2, Oct. 18, 1982, 96 Stat. 1667; Pub. L. 102–237, title X, §1011(4), Dec. 13, 1991, 105 Stat. 1898; Pub. L. 104–48, §§7, 8(a), Nov. 15, 1995, 109 Stat. 428, 429.)
Editorial Notes
Codification
Section was formerly classified to section 556 of this title.
Amendments
1995—Pub. L. 104–48, §7(d)(1), substituted "Complaints, written notifications, and investigations" for "Complaint and investigation" in section catchline.
Subsec. (a). Pub. L. 104–48, §8(a), inserted subsec. heading, designated existing provisions as par. (1), inserted par. (1) heading, and added par. (2).
Subsec. (b). Pub. L. 104–48, §7(a), inserted heading and amended text generally. Prior to amendment, text read as follows: "Any officer or agency of any State or Territory having jurisdiction over commission merchants, dealers, or brokers in such State or Territory and any employee of the United States Department of Agriculture or any interested person may file, in accordance with rules and regulations of the Secretary, a complaint of any violation of any provision of this chapter by any commission merchant, dealer, or broker and may request an investigation of such complaint by the Secretary."
Subsec. (c). Pub. L. 104–48, §7(b), inserted heading and amended text generally. Prior to amendment, text read as follows: "If there appear to be, in the opinion of the Secretary, any reasonable grounds for investigating any complaint made under this section, the Secretary shall investigate such complaint and may, if in his opinion the facts warrant such action, have said complaint served by registered mail or by certified mail or otherwise on the person concerned and afford such person an opportunity for a hearing thereon before a duly authorized examiner of the Secretary in any place in which the said person is engaged in business: Provided, That in complaints wherein the amount claimed as damages does not exceed the sum of $15,000, a hearing need not be held and proof in support of the complaint and in support of respondent's answer may be supplied in the form of depositions or verified statements of fact."
Subsec. (d). Pub. L. 104–48, §7(c), (d)(2), inserted heading and substituted "$30,000" for "$15,000" in two places in text.
Subsec. (e). Pub. L. 104–48, §7(d)(3), inserted heading.
1991—Subsecs. (c), (d). Pub. L. 102–237 inserted a period at end of subsec. (c) and substituted a period for semicolon at end of subsec. (d).
1982—Subsec. (e). Pub. L. 97–352 inserted "or by a resident of the United States to whom the claim of a nonresident of the United States has been assigned," after "In case a complaint is made by a nonresident of the United States,".
1981—Subsecs. (c), (d). Pub. L. 97–98 substituted "$15,000" for "$3,000".
1972—Subsec. (c). Pub. L. 92–231 substituted "$3,000" for "$1,500".
Subsec. (d). Pub. L. 92–231 substituted "$3,000" for "$1,500" wherever appearing.
1962—Subsec. (c). Pub. L. 87–725 substituted "$1,500" for "$500".
Subsec. (d). Pub. L. 87–725 substituted "$1,500" for "$500" wherever appearing.
1960—Subsec. (c). Pub. L. 86–507 inserted "or by certified mail" after "registered mail".
1937—Subsec. (b). Act Aug. 20, 1937, §8, substituted "section 499b of this title" for "this chapter".
Subsec. (e). Act Aug. 20, 1937, §9, inserted "and any reparation award that may be issued by the Secretary of Agriculture against the complainant on any counter claim by respondent" and proviso.
1934—Subsec. (c). Act Apr. 13, 1934, §8, inserted proviso.
Subsec. (d). Act Apr. 13, 1934, §9, substituted "complaints" for "a complaint" after "on" and inserted "where damages claimed do not exceed the sum of $500 not requiring hearing as provided herein" after "complaints".
Subsec. (e). Act Apr. 13, 1934, §10, among other changes, inserted "formal" before "action".
Statutory Notes and Related Subsidiaries
Effective Date of 1982 Amendment
Pub. L. 97–352, §3, Oct. 18, 1982, 96 Stat. 1667, provided that: "The amendment made by section 2 [amending this section] shall not apply with respect to complaints made under section 6(e) of the Perishable Agricultural Commodities Act, 1930 [7 U.S.C. 499f(e)], before the date of enactment of this Act [Oct. 18, 1982]."
Effective Date of 1981 Amendment
Amendment by Pub. L. 97–98 effective Dec. 22, 1981, see section 1801 of Pub. L. 97–98, set out as an Effective Date note under section 4301 of this title.
Filing and Handling Fees During Fiscal Years 1995 and 1996
Pub. L. 103–276, §1, July 5, 1994, 108 Stat. 1406, during fiscal years 1995 and 1996, directed Secretary of Agriculture to require filing fee of $60 per petition for petitions alleging violation of section 499b of this title and handling fee of $300 for petitions that warrant further action, which handling fee was to be included in determining amount of damages, with both fees to be deposited into the Perishable Agricultural Commodities Act Fund, prior to repeal by Pub. L. 104–48, §8(c), Nov. 15, 1995, 109 Stat. 429. See subsec. (a)(2) of this section.
§499g. Reparation order
(a) Determination by Secretary of Agriculture of amount of damages; order for payment
If after a hearing on a complaint made by any person under section 499f of this title, or without hearing as provided in subsections (c) and (d) of section 499f of this title, or upon failure of the party complained against to answer a complaint duly served within the time prescribed, or to appear at a hearing after being duly notified, the Secretary determines that the commission merchant, dealer, or broker has violated any provision of section 499b of this title, he shall, unless the offender has already made reparation to the person complaining, determine the amount of damage, if any, to which such person is entitled as a result of such violation and shall make an order directing the offender to pay to such person complaining such amount on or before the date fixed in the order. The Secretary shall order any commission merchant, dealer, or broker who is the losing party to pay the prevailing party, as reparation or additional reparation, reasonable fees and expenses incurred in connection with any such hearing. If, after the respondent has filed his answer to the complaint, it appears therein that the respondent has admitted liability for a portion of the amount claimed in the complaint as damages, the Secretary under such rules and regulations as he shall prescribe, unless the respondent has already made reparation to the person complaining, may issue an order directing the respondent to pay to the complainant the undisputed amount on or before the date fixed in the order, leaving the respondent's liability for the disputed amount for subsequent determination. The remaining disputed amount shall be determined in the same manner and under the same procedure as it would have been determined if no order had been issued by the Secretary with respect to the undisputed sum.
(b) Failure to comply with order of Secretary; suit to enforce liability; order as evidence; costs and fees
If any commission merchant, dealer, or broker does not pay the reparation award within the time specified in the Secretary's order, the complainant, or any person for whose benefit such order was made, may within three years of the date of the order file in the district court of the United States for the district in which he resides or in which is located the principal place of business of the commission merchant, dealer, or broker, or in any State court having general jurisdiction of the parties, a petition setting forth briefly the causes for which he claims damages and the order of the Secretary in the premises. The orders, writs, and processes of the district courts may in these cases run, be served, and be returnable anywhere in the United States. Such suit in the district court shall proceed in all respects like other civil suits for damages, except that the findings and orders of the Secretary shall be prima-facie evidence of the facts therein stated, and the petitioner shall not be liable for costs in the district court, nor for costs at any subsequent state of the proceedings, unless they accrue upon his appeal. If the petitioner finally prevails, he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit.
(c) Appeal from reparation order; proceedings
Either party adversely affected by the entry of a reparation order by the Secretary may, within thirty days from and after the date of such order, appeal therefrom to the district court of the United States for the district in which said hearing was held: Provided, That in cases handled without a hearing in accordance with subsections (c) and (d) of section 499f of this title or in which a hearing has been waived by agreement of the parties, appeal shall be to the district court of the United States for the district in which the party complained against is located. Such appeal shall be perfected by the filing with the clerk of said court a notice of appeal, together with a petition in duplicate which shall recite prior proceedings before the Secretary and shall state the grounds upon which the petitioner relies to defeat the right of the adverse party to recover the damages claimed, with proof of service thereof upon the adverse party. Such appeal shall not be effective unless within thirty days from and after the date of the reparation order the appellant also files with the clerk a bond in double the amount of the reparation awarded against the appellant conditioned upon the payment of the judgment entered by the court, plus interest and costs, including a reasonable attorney's fee for the appellee, if the appellee shall prevail. Such bond shall be in the form of cash, negotiable securities having a market value at least equivalent to the amount of bond prescribed, or the undertaking of a surety company on the approved list of sureties issued by the Treasury Department of the United States. The clerk of court shall immediately forward a copy thereof to the Secretary of Agriculture, who shall forthwith prepare, certify, and file in said court a true copy of the Secretary's decision, findings of fact, conclusions, and order in said case, together with copies of the pleadings upon which the case was heard and submitted to the Secretary. Such suit in the district court shall be a trial de novo and shall proceed in all respects like other civil suits for damages, except that the findings of fact and order or orders of the Secretary shall be prima-facie evidence of the facts therein stated. Appellee shall not be liable for costs in said court and if appellee prevails he shall be allowed a reasonable attorney's fee to be taxed and collected as a part of his costs. Such petition and pleadings certified by the Secretary upon which decision was made by him shall upon filing in the district court constitute the pleadings upon which said trial de novo shall proceed subject to any amendment allowed in that court.
(d) Suspension of license for failure to obey reparation order or appeal
Unless the licensee against whom a reparation order has been issued shows to the satisfaction of the Secretary within five days from the expiration of the period allowed for compliance with such order that he has either taken an appeal as herein authorized or has made payment in full as required by such order his license shall be suspended automatically at the expiration of such five-day period until he shows to the satisfaction of the Secretary that he has paid the amount therein specified with interest thereon to date of payment: Provided, That if on appeal the appellee prevails or if the appeal is dismissed the automatic suspension of license shall become effective at the expiration of thirty days from the date of the judgment on the appeal, but if the judgment is stayed by a court of competent jurisdiction the suspension shall become effective ten days after the expiration of such stay, unless prior thereto the judgment of the court has been satisfied.
(June 10, 1930, ch. 436, §7, 46 Stat. 534; Apr. 13, 1934, ch. 120, §§11–13, 48 Stat. 587, 588; June 19, 1936, ch. 602, §3, 49 Stat. 1534; Aug. 20, 1937, ch. 719, §10, 50 Stat. 728; June 23, 1938, ch. 599, 52 Stat. 953; May 14, 1940, ch. 196, 54 Stat. 214; Pub. L. 87–725, §§9, 10, Oct. 1, 1962, 76 Stat. 675; Pub. L. 92–231, §2, Feb. 15, 1972, 86 Stat. 38; Pub. L. 102–237, title X, §1011(5), Dec. 13, 1991, 105 Stat. 1898.)
Editorial Notes
Codification
Section was formerly classified to section 557 of this title.
Amendments
1991—Subsecs. (a) to (c). Pub. L. 102–237 substituted periods for semicolons at end of subsecs. (a) to (c).
1972—Subsec. (a). Pub. L. 92–231 directed the Secretary to order commission merchants, dealers, or brokers who are the losing party to pay the prevailing party, as reparation or additional reparation, reasonable fees and expenses incurred in connection with hearings.
1962—Subsec. (c). Pub. L. 87–725, §9, limited time for filing the bond to within 30 days from and after the date of the reparation order, and required such bond to be in cash, negotiable securities having a market value of at least equivalent to the amount of bond prescribed or the undertaking of a surety company on the approved list of sureties issued by the Treasury Department.
Subsec. (d). Pub. L. 87–725, §10, lengthened period upon the expiration of which the license is suspended from ten to thirty days, and provided that if the judgment is stayed by a court of competent jurisdiction the suspension becomes effective ten days after the expiration of such stay.
1940—Subsec. (c). Act May 14, 1940, inserted proviso in first sentence.
1938—Subsec. (a). Act June 23, 1938, inserted last two sentences.
1937—Subsec. (a). Act Aug. 20, 1937, among other changes, inserted "or without hearing as provided in section 499f of this title, paragraphs (c) and (d), or upon failure of the party complained against to answer a complaint duly served within the time prescribed, or to appear at a hearing after being duly notified" after "section 499f".
Subsec. (b). Act Aug. 20, 1937, among other changes, substituted "pay the reparation award" for "comply with an order for the payment of money".
Subsec. (c). Act Aug. 20, 1937, inserted "together with a bond in double the amount of the reparation award conditioned upon the payment of the judgment entered by the court plus interest and costs, including a reasonable attorney's fee for the appellee, if the appellee shall prevail" after "upon adverse party" and struck out proviso in first sentence and "by registered mail" after "adverse party".
Subsec. (d). Act Aug. 20, 1937, inserted proviso.
1936—Subsec. (c). Act June 19, 1936, inserted proviso in first sentence and "by registered mail" after "adverse party".
1934—Subsec. (b). Act Apr. 13, 1934, §11, inserted after first sentence "The orders, writs and processes of the district courts may in these cases run, be served, and be returnable anywhere in the United States."
Subsecs. (c), (d). Act Apr. 13, 1934, §§12, 13, added subsecs. (c) and (d).
§499h. Grounds for suspension or revocation of license
(a) Authority of Secretary
Whenever (1) the Secretary determines, as provided in section 499f of this title, that any commission merchant, dealer, or broker has violated any of the provisions of section 499b of this title, or (2) any commission merchant, dealer, or broker has been found guilty in a Federal court of having violated section 499n(b) of this title, the Secretary may publish the facts and circumstances of such violation and/or, by order, suspend the license of such offender for a period not to exceed ninety days, except that, if the violation is flagrant or repeated, the Secretary may, by order, revoke the license of the offender.
(b) Unlawful employment of certain persons; restrictions; bond assuring compliance; approval of employment without bond; change in amount of bond; payment of increased amount; penalties
Except with the approval of the Secretary, no licensee shall employ any person, or any person who is or has been responsibly connected with any person—
(1) whose license has been revoked or is currently suspended by order of the Secretary;
(2) who has been found after notice and opportunity for hearing to have committed any flagrant or repeated violation of section 499b of this title, but this provision shall not apply to any case in which the license of the person found to have committed such violation was suspended and the suspension period has expired or is not in effect; or
(3) against whom there is an unpaid reparation award issued within two years, subject to his right of appeal under section 499g(c) of this title.
The Secretary may approve such employment at any time following nonpayment of a reparation award, or after one year following the revocation or finding of flagrant or repeated violation of section 499b of this title, if the licensee furnishes and maintains a surety bond in form and amount satisfactory to the Secretary as assurance that such licensee's business will be conducted in accordance with this chapter and that the licensee will pay all reparation awards, subject to its right of appeal under section 499g(c) of this title, which may be issued against it in connection with transactions occurring within four years following the approval. The Secretary may approve employment without a surety bond after the expiration of two years from the effective date of the applicable disciplinary order. The Secretary, based on changes in the nature and volume of business conducted by the licensee, may require an increase or authorize a reduction in the amount of the bond. A licensee who is notified by the Secretary to provide a bond in an increased amount shall do so within a reasonable time to be specified by the Secretary, and if the licensee fails to do so the approval of employment shall automatically terminate. The Secretary may, after thirty days notice and an opportunity for a hearing, suspend or revoke the license of any licensee who, after the date given in such notice, continues to employ any person in violation of this section. The Secretary may extend the period of employment sanction as to a responsibly connected person for an additional one-year period upon the determination that the person has been unlawfully employed as provided in this subsection.
(c) Fraud in procurement
If, after a license shall have been issued to an applicant, the Secretary believes that the license was obtained through a false or misleading statement in the application therefor or through a misrepresentation, concealment, or withholding of facts respecting any violation of this chapter by any officer, agent, or employee, he may, after thirty days' notice and an opportunity for a hearing, revoke said license, whereupon no license shall be issued to said applicant or any applicant in which the person responsible for such false or misleading statement or misrepresentation, concealment, or withholding of facts is financially interested, except under the conditions set forth in section 499d(b) of this title.
(d) Injunction
In addition to being subject to the penalties provided by section 499c(a) of this title, any commission merchant, dealer, or broker who engages in or operates such business without a valid and effective license from the Secretary shall be liable to be proceeded against in any court of competent jurisdiction in a suit by the United States for an injunction to restrain such defendant from further continuing so to engage in or operate such business, and, if the court shall find that the defendant is continuing to engage in such business without a valid and effective license, the court shall issue an injunction to restrain such defendant from continuing to engage in or to operate such business without such license.
(e) Alternative civil penalties
In lieu of suspending or revoking a license under this section when the Secretary determines, as provided by section 499f of this title, that a commission merchant, dealer, or broker has violated section 499b of this title or subsection (b) of this section, the Secretary may assess a civil penalty not to exceed $2,000 for each violative transaction or each day the violation continues. In assessing the amount of a penalty under this subsection, the Secretary shall give due consideration to the size of the business, the number of employees, and the seriousness, nature, and amount of the violation. Amounts collected under this subsection shall be deposited in the Treasury of the United States as miscellaneous receipts.
(June 10, 1930, ch. 436, §8, 46 Stat. 535; Apr. 13, 1934, ch. 120, §14, 48 Stat. 588; Aug. 20, 1937, ch. 719, §11, 50 Stat. 730; July 30, 1956, ch. 786, §5, 70 Stat. 727; Pub. L. 87–725, §11, Oct. 1, 1962, 76 Stat. 675; Pub. L. 102–237, title X, §1011(6), Dec. 13, 1991, 105 Stat. 1898; Pub. L. 104–48, §§11, 12(b), Nov. 15, 1995, 109 Stat. 430, 431.)
Editorial Notes
Codification
Section was formerly classified to section 558 of this title.
Amendments
1995—Subsec. (b). Pub. L. 104–48, §12(b), inserted at end "The Secretary may extend the period of employment sanction as to a responsibly connected person for an additional one-year period upon the determination that the person has been unlawfully employed as provided in this subsection."
Subsec. (e). Pub. L. 104–48, §11, added subsec. (e).
1991—Subsec. (a). Pub. L. 102–237 redesignated cls. (a) and (b) as (1) and (2), respectively, and substituted a period for semicolon at end.
1962—Subsec. (b). Pub. L. 87–725 amended subsec. (b) generally, and among other changes, provided that any licensee hiring any person without the Secretary's approval in violation of this section, after notice and opportunity for hearing, may have his license suspended or revoked, that the restrictions shall apply to persons found, after notice and opportunity for hearing, to have committed any flagrant or repeated violation of section 499b of this title, but not where such violator's license was suspended and the suspension has expired or is not in effect, and shall also apply to persons against whom there is a unpaid reparation award issued within two years, subject to appeal under section 499g(c) of this title, permitted the Secretary to approve employment at any time following nonpayment of a reparation award, or after one year following the revocation or finding of flagrant and repeated violation of section 499b of this title, if the licensee furnishes a bond as assurance that his business will be conducted in accordance with this chapter and he will pay all reparation awards issued within four years following approval, subject to appeal under section 499g(c) of this title, or without bond after two years from the effective date of the disciplinary order, authorized the Secretary to increase or decrease the amount of bond, and required licensees notified of an increased bond to provide such in a reasonable time or the approval of employment will terminate.
1956—Subsec. (b). Act July 30, 1956, provided for suspension of licenses, and restricted authority to permit employment to those cases where licenses have been revoked or suspended for failure to pay a reparation award.
1937—Subsec. (a). Act Aug. 20, 1937, among other changes, inserted cl. (a) designation and inserted "or (b) any commission merchant, dealer, or broker has been found guilty in a Federal court of having violated section 499n(b) of this title" after "section 499b of this title".
Subsec. (b). Act Aug. 20, 1937, amended subsec. (b) generally.
Subsecs. (c), (d). Act Aug. 20, 1937, added subsecs. (c) and (d).
1934—Subsec. (b). Act Apr. 13, 1934, added subsec. (b).
§499i. Accounts, records, and memoranda; duty of licensees to keep; contents; suspension of license for violation of duty
Every commission merchant, dealer, and broker shall keep such accounts, records, and memoranda as fully and correctly disclose all transactions involved in his business, including the true ownership of such business by stockholding or otherwise. If such accounts, records, and memoranda are not so kept, the Secretary may publish the facts and circumstances and/or, by order, suspend the license of the offender for a period not to exceed ninety days.
(June 10, 1930, ch. 436, §9, 46 Stat. 535.)
Editorial Notes
Codification
Section was formerly classified to section 559 of this title.
§499j. Orders; effective date; continuance in force; suspension, modification and setting aside; penalty
Any order of the Secretary under this chapter other than an order for the payment of money shall take effect within such reasonable time, not less than ten days, as is prescribed in the order, and shall continue in force until his further order, or for a specified period of time, accordingly as it is prescribed in the order, unless such order is suspended, modified, or set aside by the Secretary or is suspended, modified, or set aside by a court of competent jurisdiction. Any such order of the Secretary, if regularly made, shall be final, unless before the date prescribed for its taking effect application is made to a court of competent jurisdiction by the commission merchant, dealer, or broker against whom such order is directed to have such order set aside or its enforcement, operation, or execution suspended or restrained.
(June 10, 1930, ch. 436, §10, 46 Stat. 535.)
Editorial Notes
Codification
Section was formerly classified to section 560 of this title.
§499k. Injunctions; application of injunction laws governing orders of Interstate Commerce Commission
For the purposes of this chapter the provisions of all laws relating to the suspending or restraining of the enforcement, operation, or execution, or the setting-aside, in whole or in part, of the orders of the Interstate Commerce Commission are made applicable to orders of the Secretary under this chapter and to any person subject to the provisions of this chapter.
(June 10, 1930, ch. 436, §11, 46 Stat. 535.)
Editorial Notes
Codification
Section was formerly classified to section 561 of this title.
Statutory Notes and Related Subsidiaries
Abolition of Interstate Commerce Commission and Transfer of Functions
Interstate Commerce Commission abolished and functions of Commission transferred, except as otherwise provided in Pub. L. 104–88, to Surface Transportation Board effective Jan. 1, 1996, by section 1302 of Title 49, Transportation, and section 101 of Pub. L. 104–88, set out as a note under section 1301 of Title 49. References to Interstate Commerce Commission deemed to refer to Surface Transportation Board, a member or employee of the Board, or Secretary of Transportation, as appropriate, see section 205 of Pub. L. 104–88, set out as a note under section 1301 of Title 49.
§499l. Violations; report to Attorney General; proceedings; costs
The Secretary may report any violation of this chapter for which a civil penalty is provided to the Attorney General of the United States, who shall cause appropriate proceedings to be commenced and prosecuted in the proper courts of the United States without delay. The costs and expenses of such proceedings shall be paid out of the appropriation for the expenses of the courts of the United States.
(June 10, 1930, ch. 436, §12, 46 Stat. 536.)
Editorial Notes
Codification
Section was formerly classified to section 562 of this title.
§499m. Complaints; procedure, penalties, etc.
(a) Investigation by Secretary of Agriculture; inspection of accounts, records, and memoranda; penalty for refusing inspection
The Secretary or his duly authorized agents shall have the right to inspect such accounts, records, and memoranda of any commission merchant, dealer, or broker as may be material (1) in the investigation of complaints under this chapter, or (2) to the determination of ownership, control, packer, or State, country, or region of origin in connection with commodity inspections, or (3) to ascertain whether section 499i of this title is being complied with, and if any such commission merchant, dealer, or broker refuses to permit such inspection, the Secretary may publish the facts and circumstances and/or, by order, suspend the license of the offender until permission to make such inspection is given. The Secretary or his duly authorized agents shall have the right to inspect any lot of any perishable agricultural commodity covered by this chapter, and if any commission merchant, dealer, or broker having ownership of or control over such lot fails or refuses to authorize or allow such inspection, the Secretary may, after thirty days' notice and an opportunity for a hearing, publish the facts and circumstances and/or, by order, suspend the license of the offender for a period not to exceed ninety days.
(b) Inspection of records; surety bond; suspension of license
The Secretary or the Secretary's duly authorized agents, in order to insure that the prompt payment provision of section 499b(4) of this title is being complied with, shall from time to time inspect the accounts, records, and memoranda of any commission merchant, dealer, or broker determined in a formal disciplinary proceeding under section 499f(b) of this title to have violated such provision. The Secretary may also require that any such commission merchant, dealer, or broker furnish, maintain, and from time to time adjust a surety bond in form and amount satisfactory to the Secretary as assurance that such commission merchant's, dealer's, or broker's business will be conducted in accordance with this chapter and that such commission merchant, dealer, or broker will pay all reparation awards, subject to its right of appeal under section 499g(c) of this title: Provided, That if such surety bond is furnished, maintained, and adjusted as required by the Secretary, the Secretary shall not thereafter inspect the accounts, records, and memoranda of such commission merchant, dealer, or broker under this subsection more than once a year. If any such commission merchant, dealer, or broker refuses to permit such inspection or fails or refuses to furnish, maintain, or adjust such surety bond, the Secretary may publish the facts and circumstances and, by order, suspend the license of the offender until permission to make such inspection is given or such surety bond is furnished, maintained, or adjusted.
(c) Hearings; subpoenas; oaths; witnesses; evidence
The Secretary, or any officer or employee designated by him for such purpose, may hold hearings, sign and issue subpoenas, administer oaths, examine witnesses, receive evidence, and require by subpoena the attendance and testimony of witnesses and the production of such accounts, records, and memoranda as may be material for the determination of any complaint under this chapter.
(d) Disobedience to subpoenas; remedy; contempt
In case of disobedience to a subpoena, the Secretary or any of his examiners may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of accounts, records, and memoranda. Any district court of the United States within the jurisdiction of which any hearing is carried on may, in case of contumacy or refusal to obey a subpoena issued to any person, issue an order requiring the person to appear before the Secretary or his examiner or to produce accounts, records, and memoranda if so ordered, or to give evidence touching any matter pertinent to any complaint; and any failure to obey such order of the court shall be punished by the court as a contempt thereof.
(e) Depositions; production of accounts, records and memoranda
The Secretary may order testimony to be taken by deposition in any proceeding or investigation or incident to any complaint pending under this chapter at any stage thereof. Such depositions may be taken before any person designated by the Secretary and having power to administer oaths. Such testimony shall be reduced to writing by the person taking the deposition or under his direction and shall then be subscribed by the deponent. Any person may be compelled to appear and depose and to produce accounts, records, and memoranda in the same manner as witnesses may be compelled to appear and testify and produce accounts, records, and memoranda before the Secretary or any of his examiners.
(f) Fees and mileage of witnesses
Witnesses summoned before the Secretary or any officer or employee designated by him shall be paid the same fees and mileage that are paid witnesses in the courts of the United States, and witnesses whose depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for like service in the courts of the United States.
(June 10, 1930, ch. 436, §13, 46 Stat. 536; July 30, 1956, ch. 786, §6, 70 Stat. 727; Pub. L. 91–452, title II, §205, Oct. 15, 1970, 84 Stat. 928; Pub. L. 95–562, §3, Nov. 1, 1978, 92 Stat. 2381.)
Editorial Notes
Codification
Section was formerly classified to section 563 of this title.
Amendments
1978—Subsecs. (b) to (f). Pub. L. 95–562 added subsec. (b) and redesignated former subsecs. (b) to (e) as (c) to (f), respectively.
1970—Subsec. (f). Pub. L. 91–452 struck out subsec. (f) which related to immunity from prosecution of any natural person compelled to testify or produce evidence, documentary or otherwise, after claiming his privilege against self-incrimination.
1956—Subsec. (a). Act July 30, 1956, permitted inspection of accounts, records and memoranda to determine ownership, control, packer, or State, country, or region of origin in connection with commodity inspection, and to ascertain whether section 499i of this title is being complied with, and to permit inspection of lots of perishable agricultural commodities.
Statutory Notes and Related Subsidiaries
Effective Date of 1970 Amendment
Amendment by Pub. L. 91–452 effective on sixtieth day following Oct. 15, 1970, and not to affect any immunity to which any individual is entitled under this section by reason of any testimony given before sixtieth day following Oct. 15, 1970, see section 260 of Pub. L. 91–452, set out as an Effective Date; Savings Provision note under section 6001 of Title 18, Crimes and Criminal Procedure.
§499n. Inspection of perishable agricultural commodities
(a) Employment of inspectors; fees and expenses; inspection certificate as evidence
The Secretary is authorized, independently and in cooperation with other branches of the Government, State, or municipal agencies and/or any person, whether operating in one or more jurisdictions, to employ and/or license inspectors to inspect and certify, without regard to the filing of a complaint under this chapter, to any interested person the class, quality, and/or condition of any lot of any perishable agricultural commodity when offered for interstate or foreign shipment or when received at places where the Secretary shall find it practicable to provide such service, under such rules and regulations as he may prescribe, including the payment of such fees and expenses as will be reasonable and as nearly as may be to cover the cost for the service rendered: Provided, That fees for inspections made by a licensed inspector, less the percentage thereof which he is allowed by the terms of his contract of employment with the Secretary as compensation for his services, shall be deposited into the Treasury of the United States as miscellaneous receipts; and fees for inspections made by an inspector acting under a cooperative agreement with a State, municipality, or other person shall be disposed of in accordance with the terms of such agreement: Provided further, That expenses for travel and subsistence incurred by inspectors shall be paid by the applicant for inspection to the United States Department of Agriculture to be credited to the appropriation for carrying out the purposes of this chapter: And provided further, That official inspection certificates for fresh fruits and vegetables issued by the Secretary of Agriculture pursuant to any law shall be received by all officers and all courts of the United States, in all proceedings under this chapter, and in all transactions upon contract markets under Commodities Exchange Act (7 U.S.C. 1 et seq.), as prima-facie evidence of the truth of the statements therein contained.
(b) Issuance of fraudulent certificates; penalties
Whoever shall falsely make, issue, alter, forge, or counterfeit, or cause or procure to be falsely made, issued, altered, forged, or counterfeited, or willingly aid, cause, procure or assist in, or be a party to the false making, issuing, altering, forging, or counterfeiting of any certificate of inspection issued under authority of this chapter, sections 491, 493 to 497 of this title, or any Act making appropriations for the Department of Agriculture; or shall utter or publish as true or cause to be uttered or published as true any such false, forged, altered, or counterfeited certificate, for a fraudulent purpose, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than $500 or by imprisonment for a period of not more than one year, or both, at the discretion of the court.
(June 10, 1930, ch. 436, §14, 46 Stat. 537; Apr. 13, 1934, ch. 120, §15, 48 Stat. 588; Aug. 20, 1937, ch. 719, §12, 50 Stat. 730; Pub. L. 102–237, title X, §1011(7), Dec. 13, 1991, 105 Stat. 1898.)
Editorial Notes
References in Text
The Commodities Exchange Act, referred to in subsec. (a), probably means act Sept. 21, 1922, ch. 369, 42 Stat. 998, known as the Commodity Exchange Act, which is classified generally to chapter 1 (§1 et seq.) of this title. For complete classification of this Act to the Code, see section 1 of this title and Tables.
Codification
Section was formerly classified to section 564 of this title.
Amendments
1991—Subsec. (a). Pub. L. 102–237 substituted "(7 U.S.C. 1 et seq.)" for "(7 U.S.C., Supp. 2, secs. 1 to 17(a))" and a period for semicolon at end.
1937—Act Aug. 20, 1937, designated existing provisions as subsec. (a) and, among other changes inserted "That official inspection certificates for fresh fruits and vegetables issued by the Secretary of Agriculture pursuant to any law shall be received by all officers and all courts of the United States, in all proceedings under this chapter, and in all transactions upon contract markets under Commodities Exchange Act" before "as prima facie" in third proviso, and added subsec. (b).
1934—Act Apr. 13, 1934, inserted "and in all proceedings under this chapter" after "United States" in third proviso.
Statutory Notes and Related Subsidiaries
Potato Inspection
Pub. L. 99–198, title XVII, §1704, Dec. 23, 1985, 99 Stat. 1635, as amended by Pub. L. 104–66, title I, §1011(g), Dec. 21, 1995, 109 Stat. 710, provided that: "The Secretary of Agriculture shall perform random spot checks of potatoes entering through ports of entry in the northeastern United States."
§499o. Rules, regulations, and orders; appointment, removal, and compensation of officers and employees; expenditures; authorization of appropriations; abrogation of inconsistent statutes
The Secretary may make such rules, regulations, and orders as may be necessary to carry out the provisions of this chapter, and may cooperate with any department or agency of the Government, any State, Territory, District, or possession, or department, agency, or political subdivision thereof, or any person; and shall have the power to appoint, remove, and fix the compensation of such officers and employees not in conflict with existing law, and make such expenditures for rent outside the District of Columbia, printing, binding, telegrams, telephones, lawbooks, books of reference, publications, furniture, stationery, office equipment, travel, and other supplies and expenses, including reporting services, as shall be necessary to the administration of this chapter in the District of Columbia and elsewhere, from the Perishable Agricultural Commodities Act fund provided for by section 499c(b) of this title and any supplements to such fund, and as may be appropriated for by Congress; and there is authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, such sums as may be necessary for such purposes. This chapter shall not abrogate nor nullify any other statute, whether State or Federal, dealing with the same subjects of this chapter; but it is intended that all such statutes shall remain in full force and effect except insofar only as they are inconsistent herewith or repugnant hereto.
(June 10, 1930, ch. 436, §15, 46 Stat. 537; June 15, 1950, ch. 254, §3, 64 Stat. 218.)
Editorial Notes
Codification
Section was formerly classified to section 565 of this title.
Amendments
1950—Act June 15, 1950, provided for payment of administrative costs out of fund and any supplements thereto as well as by Congressional appropriations.
§499p. Liability of licensees for acts and omissions of agents
In construing and enforcing the provisions of this chapter, the act, omission, or failure of any agent, officer, or other person acting for or employed by any commission merchant, dealer, or broker, within the scope of his employment or office, shall in every case be deemed the act, omission, or failure of such commission merchant, dealer, or broker as that of such agent, officer, or other person.
(June 10, 1930, ch. 436, §16, 46 Stat. 538.)
Editorial Notes
Codification
Section was formerly classified to section 566 of this title.
§499q. Separability
If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the chapter and of the application of such provision to other persons and circumstances shall not be affected thereby.
(June 10, 1930, ch. 436, §17, 46 Stat. 538.)
Editorial Notes
Codification
Section was formerly classified to section 567 of this title.
§499r. Repealed. Pub. L. 102–237, title X, §1011(8), Dec. 13, 1991, 105 Stat. 1898
Section, act June 10, 1930, ch. 436, §18, 46 Stat. 538, provided for short title of chapter. See section 499a(a) of this title.
§499s. Depositing appropriations in fund
Any unexpended balances of appropriations for the current fiscal year, and any subsequent appropriations, made to carry out the Acts referred to in section 499c(b) of this title, may be deposited in the Perishable Agricultural Commodities Act fund.
(June 10, 1930, ch. 436, §19, as added June 15, 1950, ch. 254, §4, 64 Stat. 218.)
Editorial Notes
References in Text
The Acts referred to in section 499c(b) of this title, referred to in text, mean the Perishable Agricultural Commodities Act, 1930, which was translated to read "this chapter" and the Act to prevent the destruction or dumping of farm produce, act Mar. 3, 1927, ch. 309, 44 Stat. 1355, which is classified to chapter 20 (§491 et seq.) of this title.
§499t. Omitted
Editorial Notes
Codification
Section, act June 10, 1930, ch. 436, §20, as added Aug. 22, 1988, Pub. L. 100–414, §2, 102 Stat. 1102, established Perishable Agricultural Commodities Act Industry Advisory Committee, provided for its membership, compensation, etc., directed advisory committee to review Perishable Agricultural Commodities Act program and to make findings and recommendations to Congress and Secretary of Agriculture with respect to future operations of program, with an interim report not later than Sept. 30, 1989, and a final report not later than May 1, 1990, containing results of its review and recommendations, and provided that advisory committee cease to exist on date of its final report.
CHAPTER 21—TOBACCO STATISTICS
§501. Collection and publication; facts required; deteriorated tobacco
The Secretary of Agriculture is authorized and directed to collect and publish statistics of the quantity of leaf tobacco in all forms in the United States and Puerto Rico, owned by or in the possession of dealers, manufacturers, quasi-manufacturers, growers' cooperative associations, warehousemen, brokers, holders, or owners, other than the original growers of tobacco. The statistics shall show the quantity of tobacco in such detail as to types, groups of grades, and such other subdivisions as to quality, color, and/or grade for particular types, as the Secretary of Agriculture shall deem to be practical and necessary for the purposes of this chapter, shall be summarized as of January 1, April 1, July 1, and October 1 of each year, and an annual report on tobacco statistics shall be issued: Provided, That the Secretary of Agriculture shall not be required to collect statistics of leaf tobacco from any manufacturer of tobacco who, in the first three quarters of the preceding calendar year, according to the returns of the Commissioner of Internal Revenue or the record of the Treasurer of Puerto Rico, manufactured less than thirty-five thousand pounds of tobacco, or from any manufacturer of cigars who, during the first three quarters of the preceding calendar year, manufactured less than one hundred and eighty-five thousand cigars, or from any manufacturer of cigarettes who, during the first three quarters of the preceding year, manufactured less than seven hundred and fifty thousand cigarettes: And provided further, That the Secretary of Agriculture may omit the collection of statistics from any dealer, manufacturer, growers' cooperative association, warehouseman, broker, holder, or owner who does not own and/or have in stock, in the aggregate, fifty thousand pounds or more of leaf tobacco on the date as of which the reports are made. For the purposes of this chapter, any tobacco which has deteriorated on account of age or other causes to the extent that it is not merchantable or is unsuitable for use in manufacturing tobacco products shall be classified with other nondescript tobacco and reported in the "N" group of the type to which it belongs.
(Jan. 14, 1929, ch. 69, §1, 45 Stat. 1079; July 14, 1932, ch. 480, §1, 47 Stat. 662; Aug. 27, 1935, ch. 749, §1, 49 Stat. 893.)
Editorial Notes
Amendments
1935—Act Aug. 27, 1935, inserted "and Puerto Rico" after "United States", substituted "seven hundred and fifty thousand cigarettes" for "one million cigarettes" before second proviso and inserted second proviso.
1932—Act July 14, 1932, substituted "thirty-five" for "fifty" and "one hundred and eighty-five thousand cigars" and "one million" for "seven hundred and fifty thousand cigarettes".
Statutory Notes and Related Subsidiaries
Change of Name
"Porto Rico" changed to "Puerto Rico" by act May 17, 1932, ch. 190, 47 Stat. 158.
Separability
Act Aug. 27, 1935, ch. 749, §4, 49 Stat. 894, provided that: "If any provision of this Act [amending this section and sections 502 and 505 of this title], or the application of such provision to any person or circumstances, is held invalid, the remainder of the Act and the application of such provisions to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby."
§502. Standards for classification; returns and blanks
The Secretary of Agriculture shall establish standards for the classification of leaf tobacco, and he is authorized to demonstrate such standards, to prepare and distribute samples thereof, and to make reasonable charges therefor. He shall specify the types, groups of grades, qualities, colors, and/or grades, which shall be included in the returns required by this chapter. The Secretary of Agriculture shall prepare appropriate blanks upon which the returns shall be made, shall, upon request, furnish copies to persons who are required by this chapter to make returns, and such returns shall show the types, groups of grades, qualities, colors, and/or grades and such other information as the Secretary may require.
(Jan. 14, 1929, ch. 69, §2, 45 Stat. 1079; Aug. 27, 1935, ch. 749, §2, 49 Stat. 894.)
Editorial Notes
Amendments
1935—Act Aug. 27, 1935, inserted "and such returns shall show the types, groups of grades, qualities, colors, and/or grades and such other information as the Secretary may require" in last sentence.
§503. Reports; necessity; by whom made; penalties
It shall be the duty of every dealer, manufacturer, quasi-manufacturer, growers' cooperative association, warehouseman, broker, holder, or owner, other than the original grower, except such persons as are excluded by the proviso to section 501 of this title, to furnish within fifteen days after January 1, April 1, July 1, and October 1 of each year, completely and correctly, to the best of his knowledge, a report of the quantity of leaf tobacco on hand, segregated in accordance with the blanks furnished by the Secretary of Agriculture. Any person, firm, association, or corporation required by this chapter to furnish a report, and any officer, agent, or employee thereof who shall refuse or willfully neglect to furnish any of the information required by this chapter, or shall willfully give answers that are false or misleading, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than $300 or more than $1,000, or imprisoned not more than one year, or both.
(Jan. 14, 1929, ch. 69, §3, 45 Stat. 1080; July 14, 1932, ch. 480, §2, 47 Stat. 663.)
Editorial Notes
Amendments
1932—Act July 14, 1932, made quasi-manufacturers subject to section.
§504. "Person" defined
The word "person" as used in this chapter shall be held to embrace also any partnership, corporation, association, or other legal entity.
(Jan. 14, 1929, ch. 69, §4, 45 Stat. 1080.)
§505. Access to internal-revenue records
The Secretary of Agriculture shall have access to the tobacco records of the Commissioner of Internal Revenue and of the several collectors of internal revenue for the purpose of obtaining lists of the persons subject to this chapter and for the purpose of aiding the collection of the information herein required, and the Commissioner of Internal Revenue and the several collectors of internal revenue shall cooperate with the Secretary of Agriculture in effectuating the provisions of this chapter.
(Jan. 14, 1929, ch. 69, §5, 45 Stat. 1080; Aug. 27, 1935, ch. 749, §3, 49 Stat. 894.)
Editorial Notes
Amendments
1935—Act Aug. 27, 1935, reenacted section without change.
Executive Documents
Abolition of Offices and Transfer of Functions
Offices of Internal Revenue Collector and Deputy Collector abolished by 1952 Reorg. Plan No. 1, §1, eff. Mar. 14, 1952, 17 F.R. 2243, 66 Stat. 823, set out in the Appendix to Title 5, Government Organization and Employees, and by section 2 thereof a new office of district commissioner of internal revenue was established. Section 4 of the Plan transferred all functions, that had been vested by statute in any officer or employee of Bureau of Internal Revenue since effective date of 1950 Reorg. Plan No. 26, §§1, 2, 15 F.R. 4935, 64 Stat. 1280, 1281, to Secretary of the Treasury.
Functions of all officers of Department of the Treasury, and functions of all agencies and employees of Department, transferred, with certain exceptions, to Secretary of the Treasury, with power vested in him to authorize their performance or performance of any of his functions, by any of those officers, agencies, and employees, by 1950 Reorg. Plan No. 26, §§1, 2, eff. July 31, 1950, 15 F.R. 4935, 64 Stat. 1280, 1281, set out in the Appendix to Title 5, Government Organization and Employees. Commissioner of Internal Revenue, referred to in text, is an officer of Department of the Treasury.
§506. Returns under oath; administration
The returns provided for in this chapter shall be made under oath before a collector or deputy collector of internal revenue, a postmaster, assistant postmaster, or anyone authorized to administer oaths by State or Federal law.
(Jan. 14, 1929, ch. 69, §6, 45 Stat. 1080.)
Executive Documents
Abolition of Offices and Transfer of Functions
See note under section 505 of this title.
§507. Limitation on use of statistical information
The information furnished under the provisions of this chapter shall be used only for the statistical purposes for which it is supplied. No publication shall be made by the Secretary of Agriculture whereby the data furnished by any particular establishment can be identified, nor shall the Secretary of Agriculture permit anyone other than the sworn employees of the Department of Agriculture to examine the individual reports.
(Jan. 14, 1929, ch. 69, §7, 45 Stat. 1080.)
§508. Separability
If any provision of this chapter is declared unconstitutional or the applicability thereof to any person or circumstance is held invalid, the validity of the remainder of said sections and the applicability of such provisions to other persons and circumstances shall not be affected thereby.
(Jan. 14, 1929, ch. 69, §9, 45 Stat. 1080.)
§509. Repealed. Pub. L. 104–127, title II, §262, Apr. 4, 1996, 110 Stat. 973
Section, Pub. L. 98–180, title II, §214, as added Pub. L. 101–624, title XV, §1557, Nov. 28, 1990, 104 Stat. 3699; amended Pub. L. 102–237, title III, §337, Dec. 13, 1991, 105 Stat. 1859, provided for reporting requirements relating to tobacco.
CHAPTER 21A—TOBACCO INSPECTION
§511. Definitions
When used in this chapter—
(a) "Person" includes partnerships, associations, and corporations, as well as individuals.
(b) "Secretary" means the Secretary of Agriculture of the United States.
(c) "Inspector" means any person employed, licensed, or authorized by the Secretary to determine and certify the type, grade, condition, or other characteristics of tobacco.
(d) "Sampler" means any person employed, licensed, or authorized by the Secretary to select, tag, and seal official samples of tobacco.
(e) "Weigher" means any person employed, licensed, or authorized by the Secretary to weigh and certify the weight of tobacco.
(f) "Tobacco" means tobacco in its unmanufactured form.
(g) "Auction market" means a market or place to which tobacco is delivered by the producers thereof, or their agents, for sale at auction through a warehouseman or commission merchant.
(h) Words in the singular form shall be deemed to import the plural form when necessary.
(i) "Commerce" means commerce between any State, Territory, or possession, or the District of Columbia, and any place outside thereof; or between points within the same State, Territory, or possession, or the District of Columbia, but through any place outside thereof; or within any Territory or possession, or the District of Columbia. For the purposes of this chapter (but not in any wise limiting the foregoing definition) a transaction in respect to tobacco shall be considered to be in commerce if such tobacco is part of that current of commerce usual in the tobacco industry whereby tobacco or products manufactured therefrom are sent from one State with the expectation that they will end their transit, after purchase, in another, including, in addition to cases within the above general description, all cases where purchase or sale is either for shipment to another State or for manufacture within the State and the shipment outside the State of the products resulting from such manufacture. Tobacco normally in such current of commerce shall not be considered out of such current through resort being had to any means or device intended to remove transactions in respect thereto from the provisions of this chapter. For the purpose of this paragraph the word "State" includes Territory, the District of Columbia, possession of the United States, and foreign nations.
(Aug. 23, 1935, ch. 623, §1, 49 Stat. 731.)
§511a. Declaration of purpose
Transactions in tobacco involving the sale thereof at auction as commonly conducted at auction markets are affected with a public interest; such transactions are carried on by tobacco producers generally and by persons engaged in the business of buying and selling tobacco in commerce; the classification of tobacco according to type, grade, and other characteristics affect the prices received therefor by producers; without uniform standards of classification and inspection the evaluation of tobacco is susceptible to speculation, manipulation, and control, and unreasonable fluctuations in prices and quality determinations occur which are detrimental to producers and persons handling tobacco in commerce; such fluctuations constitute a burden upon commerce and make the use of uniform standards of classification and inspection imperative for the protection of producers and others engaged in commerce and the public interest therein.
(Aug. 23, 1935, ch. 623, §2, 49 Stat. 731.)
§511b. Official standards for classification; tentative standards; modification
The Secretary is authorized to investigate the sorting, handling, conditioning, inspection, and marketing of tobacco from time to time, and to establish standards for tobacco by which its type, grade, size, condition, or other characteristics may be determined, which standards shall be the official standards of the United States, and shall become effective immediately or upon a date specified by the Secretary: Provided, That the Secretary may issue tentative standards for tobacco prior to the establishment of official standards therefor, and he may modify any standards established under authority of this chapter whenever, in his judgment, such action is advisable.
(Aug. 23, 1935, ch. 623, §3, 49 Stat. 732.)
§511c. Demonstration of official standards; samples; cost
The Secretary is authorized to demonstrate the official standards; to prepare and distribute, upon request, samples, illustrations, or sets thereof; and to make reasonable charges therefore: Provided, That in no event shall charges be in excess of the cost of said samples, illustrations, and services so rendered.
(Aug. 23, 1935, ch. 623, §4, 49 Stat. 732.)
§511d. Designation of markets; manner; inspection and related services; fees and charges
The Secretary is authorized to designate those auction markets where tobacco bought and sold thereon at auction, or the products customarily manufactured therefrom, moves in commerce. Before any market is designated by the Secretary under this section he shall determine by referendum the desire of tobacco growers who sold tobacco at auction on such market during the preceding marketing season. The Secretary may at his discretion hold one referendum for two or more markets or for all markets in a type area. No market or group of markets shall be designated by the Secretary unless two-thirds of the growers voting favor it. The Secretary shall have access to the tobacco records of the Collector of Internal Revenue and of the several collectors of internal revenue for the purpose of obtaining the names and addresses of growers who sold tobacco on any auction market, and the Secretary shall determine from said records the eligibility of such grower to vote in such referendum, and no grower shall be eligible to vote in more than one referendum. After public notice of not less than thirty days that any auction market has been so designated by the Secretary, no tobacco shall be offered for sale at auction on such market until it shall have been inspected and certified by an authorized representative of the Secretary according to the standards established under this chapter, except that the Secretary may temporarily suspend the requirement of inspection and certification at any designated market whenever he finds it impracticable to provide for such inspection and certification because competent inspectors are not obtainable or because the quantity of tobacco available for inspection is insufficient to justify the cost of such service: Provided, That, in the event competent inspectors are not available, or for other reasons, the Secretary is unable to provide for such inspection and certification at all auction markets within a type area, he shall first designate those auction markets where the greatest number of growers may be served with the facilities available to him. The Secretary shall by regulation fix and collect fees and charges for inspection and certification, the establishment of standards, and other services under this section at designated auction markets. The fees and charges authorized by this section shall, as nearly as practicable, cover the costs of the services, including the administrative and supervisory costs customarily included by the Secretary in user fee calculations. The fees and charges, late payment penalties, and interest earned from the investment of such funds, when collected, shall be credited to the current appropriation account that incurs the cost and shall be available without fiscal year limitation to pay the expenses of the Secretary incident to providing services under this chapter. Any funds realized from the collection of fees or charges authorized under this section and section 511e of this title and credited to the current appropriation account incurring the cost of services provided under this section and section 511e of this title, late payment penalties, and interest earned from the investment of such funds may be invested by the Secretary in insured or fully collateralized, interest-bearing accounts or, at the discretion of the Secretary, by the Secretary of the Treasury in United States Government debt instruments. Any income realized from this activity may be used to pay the expenses of the Secretary of Agriculture incident to providing services under this chapter or reinvested in the manner authorized in the preceding sentence. The fees and charges authorized in this section shall be assessed against the warehouse operator, irrespective of ownership or interest in the tobacco, and shall be collected by the warehouse operator from the sellers of the tobacco. The inspection and related services under this section shall be suspended or denied if the warehouse operator fails to collect or otherwise pay the fees and charges imposed under this section. Tobacco inspection or certification services provided to designated auction markets shall take precedence over such services, other than reinspection, requested under the authority contained in section 511e of this title or any other provision of law. In accordance with chapter 10 of title 5, the Secretary shall establish a national advisory committee of tobacco producers, and advisory subcommittees for each major kind of tobacco, to advise the Secretary with regard to the level of inspection and related services and the fees and charges therefor. The advisory committee and subcommittees established under this section shall be of permanent duration. The committees shall meet at the call of the Secretary.
(Aug. 23, 1935, ch. 623, §5, 49 Stat. 732; Pub. L. 97–35, title I, §157(a)(1), Aug. 13, 1981, 95 Stat. 374; Pub. L. 99–272, title I, §1111, Apr. 7, 1986, 100 Stat. 99; Pub. L. 117–286, §4(a)(24), Dec. 27, 2022, 136 Stat. 4307.)
Editorial Notes
Amendments
2022—Pub. L. 117–286 substituted "chapter 10 of title 5," for "the Federal Advisory Committee Act,".
1986—Pub. L. 99–272 inserted "late payment penalties, and interest earned from the investment of such funds," in ninth sentence, substituted "The fees and charges authorized in this section shall be assessed" for "Such fees and charges shall be assessed", and inserted provision relating to the investment of any funds realized from collection of fees or charges in insured or fully collateralized, interest-bearing accounts or in United States Government debt instruments, the income therefrom to be used to pay expenses incident to providing services under this chapter or reinvested.
1981—Pub. L. 97–35 substituted provisions requiring the Secretary to fix and collect fees and charges for inspection, certification, establishment of standards, and other services at designated auction markets, for provisions prohibiting imposition or collection of fees or charges for inspection or certification at markets.
Statutory Notes and Related Subsidiaries
Effective Date of 1981 Amendment
Pub. L. 97–35, title I, §157(b), Aug. 13, 1981, 95 Stat. 375, provided that: "The provisions of this section [amending this section and section 511e of this title] shall become effective October 1, 1981."
Executive Documents
Abolition of Offices and Transfer of Functions
Offices of Internal Revenue Collector and Deputy Collector abolished by 1952 Reorg. Plan No. 1, §1, eff. Mar. 14, 1952, 17 F.R. 2243, 66 Stat. 823, set out in the Appendix to Title 5, Government Organization and Employees, and by section 2 thereof a new office of district commissioner of internal revenue established. Section 4 of the Plan transferred all functions, that had been vested by statute in any officer or employee of Bureau of Internal Revenue since effective date of 1950 Reorg. Plan No. 26, §§1, 2, 15 F.R. 4935, 64 Stat. 1280, 1281, to Secretary of the Treasury.
§511e. Sampling and weighing; cost; disposition of moneys received; expenses; purpose
The Secretary, independently or in cooperation with other branches of the Government, State agencies, or persons whether operating in one or more jurisdictions, is authorized to employ and/or license competent persons as samplers to take official samples of tobacco, or as weighers to weigh and certify the weight of tobacco, or as inspectors of tobacco to determine and certify, upon the request of the owner or other financially interested person, the type, grade, weight, condition, and/or such other facts as the Secretary may deem necessary.
The Secretary shall fix and collect such fees or charges in the administration of this section as will cover, as nearly as practicable, the costs of the services provided, including administrative and supervisory costs. Such fees and charges shall be credited to the account referred to in section 511d of this title. Fees or charges collected under an agreement with a State, municipality, or person, or by an individual licensed to inspect or weigh or sample tobacco under this chapter, may be disposed of in accordance with the terms of such agreement or license. Charges for expenses for travel and subsistence incurred by inspectors or weighers or samplers employed by the Secretary when required to be paid by the applicant for service, may be credited to the appropriation, or any other funds authorized in this chapter from which they were paid.
This section is intended merely to provide for the furnishing of services upon request of the owner or other person financially interested in tobacco to be sampled, inspected, or weighed and shall not be construed otherwise.
(Aug. 23, 1935, ch. 623, §6, 49 Stat. 732; Pub. L. 97–35, title I, §157(a)(2), Aug. 13, 1981, 95 Stat. 375.)
Editorial Notes
Amendments
1981—Pub. L. 97–35 substituted provisions requiring the Secretary to fix and collect fees and charges to cover cost of services, for provisions authorizing the Secretary to fix and collect fees and charges as he deems reasonable and provisions respecting fees or charges collected under an agreement with a State, etc.
Statutory Notes and Related Subsidiaries
Effective Date of 1981 Amendment
Amendment by Pub. L. 97–35 effective Oct. 1, 1981, see section 157(b) of Pub. L. 97–35, set out as a note under section 511d of this title.
§511f. Reinspection and appeal inspection; certificate as evidence
The Secretary shall provide for such reinspection or appeal inspection of tobacco as he may deem necessary for the confirmation or reversal of certificates issued under this chapter. Each inspection certificate issued under this chapter, unless invalidated or superseded in accordance with the regulations of the Secretary, shall be received in all courts and by all officers and employees of the United States as prima facie evidence of the truth of the statements therein contained.
(Aug. 23, 1935, ch. 623, §7, 49 Stat. 733.)
§511g. Placing of grade on warehouse tickets, etc.; form
Warehousemen shall provide space on warehouse tickets or other tags or labels used by them for showing the grade of the lot covered thereby as determined by an authorized tobacco inspector under this chapter. The Secretary may prescribe, by regulation, the form in which such certification of grade shall be shown, and may require that a copy of such warehouse ticket, tag, or label shall be furnished to the Secretary.
(Aug. 23, 1935, ch. 623, §8, 49 Stat. 733.)
§511h. Publication of information relating to tobacco
The Secretary is authorized to collect, publish, and distribute, by telegraph, mail, or otherwise without cost to the grower, timely information on the market supply and demand, location, disposition, quality, condition, and market prices for tobacco.
(Aug. 23, 1935, ch. 623, §9, 49 Stat. 733.)
§511i. Offenses
It shall be unlawful—
(a) For any person to use the words "United States", "Government", or "Federal", or any abbreviation thereof, in, or in connection with, any statement relating to the grade of tobacco when such grade is not, in fact, one of the grades for tobacco according to the standards of the United States.
(b) For any person falsely to make, issue, alter, forge, or counterfeit, or aid, cause, procure, or assist in or be a party to the false making, issuing, altering, forging, or counterfeiting of any certificate, stamp, tag, seal, label, or other writing purporting to be issued or authorized under this chapter.
(c) For any person, not an authorized inspector under this chapter, to issue a certificate or report stating the type, grade, size, or condition of any lot of tobacco to be in accordance with the standards of the United States therefor which is of such color, size, arrangement, or wording as to be mistaken for a certificate issued under this chapter, unless such certificate states in prominent letters in its heading that it is not issued under authority of the United States.
(d) For any person employed, designated, or licensed by the Secretary as an inspector, sampler, or weigher of tobacco under this chapter knowingly to inspect, sample, or weigh improperly, or to issue any false certificate under this chapter, or to accept money or other consideration, directly or indirectly, for any neglect or improper performance of duty as an inspector, sampler or weigher.
(e) For any person improperly to influence or to attempt improperly to influence or forcibly to assault, resist, impede, or interfere with any inspector, sampler, weigher, or other person employed, designated, or licensed by the Secretary in the execution of his duties under this chapter: Provided, however, That nothing herein shall operate to prevent the owner of tobacco from appealing or protesting, in accordance with regulations of the Secretary, the grade certified for his tobacco.
(f) For any person falsely to represent or otherwise indicate that he is authorized by the Secretary to inspect, sample, or weigh tobacco under this chapter.
(g) For any person to substitute, or attempt to substitute, following inspection or sampling or weighing under this chapter, other tobacco for tobacco actually inspected or sampled or weighed, or in the case of tobacco inspected in auction warehouses for any person not so authorized by the Secretary to remove any certificate of grade from any lot of tobacco prior to the sale of such lot.
(h) For any person falsely to represent that tobacco has been inspected, sampled, or weighed under this chapter; or knowingly to have made any false representation concerning tobacco inspected under this chapter; or knowing that tobacco is to be offered for inspection or sampling under this chapter to load, pack, or arrange such tobacco in such manner as knowingly to conceal foreign matter or tobacco of inferior grade, quality, or condition; or for any person knowing that tobacco has been so loaded, packed, or arranged, to offer it for inspection or sampling without disclosing such knowledge to the inspector or sampler before inspection or sampling.
(i) For any person willfully to alter an official sample of tobacco by removing or plucking leaves or otherwise, or for any person knowing that an official sample of tobacco has been so altered, thereafter to represent such sample as an official sample.
(Aug. 23, 1935, ch. 623, §10, 49 Stat. 733.)
§511j. Publication of violations
The Secretary is authorized to publish the facts regarding any violation of this chapter.
(Aug. 23, 1935, ch. 623, §11, 49 Stat. 734.)
§511k. Penalty for violations
Any person violating any provision of sections 511d and 511i of this title shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000, or imprisoned not more than one year, or both.
(Aug. 23, 1935, ch. 623, §12, 49 Stat. 734.)
§511l. Act of agent as that of principal
In construing and enforcing the provisions of this chapter; 1 the act; 1 omission, or failure of any agent, officer, or other person acting for or employed by an association, partnership, corporation, or firm, within the scope of his employment or office, shall be deemed to be the act, omission, or failure of the association, partnership, corporation, or firm, as well as that of the person.
(Aug. 23, 1935, ch. 623, §13, 49 Stat. 734.)
1 So in original. The semicolon probably should be a comma.
§511m. Regulation; hearings; employees; expenditures; authorization of appropriations
The Secretary is authorized to make such rules and regulations and hold such hearings as he may deem necessary to effectuate the purposes of this chapter and may cooperate with any other Department or agency of the Government; any State, territory, district, or possession, or department, agency, or political subdivision thereof; purchasing and consuming organizations, boards of trade, chambers of commerce, or other associations of business men or trade organizations; or any person, whether operating in one or more jurisdictions in carrying on the work herein authorized; and he shall have the power to appoint, suspend, remove, and fix the compensation of all officers, employees, and licensees not in conflict with existing law, except that inspectors and supervisors employed thereunder on a seasonal basis and working for periods of six months or less during any twelve-month period may be appointed without reference to the provisions of chapter 51 and subchapter III of chapter 53 of title 5. The Secretary is authorized to make such expenditures for rent outside of the District of Columbia, printing, binding, telegrams, telephones, books of reference, publications, furniture, stationery, office and laboratory equipment, travel, tobacco for use in preparing and demonstrating standards, and other supplies and expenses, including reporting services, as shall be necessary to the administration of this chapter in the District of Columbia and elsewhere, and as may be appropriated for by Congress; and there is authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, such sums as may be necessary for administering this chapter.
(Aug. 23, 1935, ch. 623, §14, 49 Stat. 734; Oct. 28, 1949, ch. 782, title II, §202(28), title XI, §1106(a), 63 Stat. 956, 972.)
Editorial Notes
Codification
"Chapter 51 and subchapter III of chapter 53 of title 5" substituted in text for "the Classification Act of 1949" on authority of Pub. L. 89–554, §7(b), Sept. 6, 1966, 80 Stat. 631, the first section of which enacted Title 5, Government Organization and Employees.
Amendments
1949—Act Oct. 28, 1949, substituted "Classification Act of 1949" for "Classification Act of 1923".
Statutory Notes and Related Subsidiaries
Repeals
Act Oct. 28, 1949, ch. 782, cited as a credit to this section, was repealed (subject to a savings clause) by Pub. L. 89–554, Sept. 6, 1966, §8, 80 Stat. 632, 655.
§511n. Hearings; examination of witnesses; refusal to testify or produce evidence
In carrying on the work authorized in this chapter, the Secretary, or any officer or employee designated by him for such purpose, shall have power to hold hearings, administer oaths, sign and issue subpenas, examine witnesses, and require the production of books, records, accounts, memoranda, and papers. Upon refusal by any person to appear, testify, or produce books, records, accounts, memoranda, and papers in response to a subpena, the proper United States district court shall have power to compel obedience thereto.
(Aug. 23, 1935, ch. 623, §15, 49 Stat. 735.)
§511o. Separability
If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the validity of the remainder of the chapter and of the application of such provision to other persons and circumstances shall not be affected thereby.
(Aug. 23, 1935, ch. 623, §16, 49 Stat. 735.)
§511p. Delegation of duties by Secretary of Agriculture
Any duties devolving upon the Secretary of Agriculture by virtue of the provisions of this chapter may with like force and effect be executed by such officer or officers, agent or agents, of the Department of Agriculture as the Secretary may designate for the purpose.
(Aug. 23, 1935, ch. 623, §17, 49 Stat. 735.)
§511q. Short title
This chapter may be cited as "The Tobacco Inspection Act."
(Aug. 23, 1935, ch. 623, §18, 49 Stat. 735.)
§511r. Repealed. Pub. L. 108–357, title VI, §611(b), Oct. 22, 2004, 118 Stat. 1522
Section, Pub. L. 98–180, title II, §213, Nov. 29, 1983, 97 Stat. 1149; Pub. L. 99–198, title XI, §§1161, 1166, Dec. 23, 1985, 99 Stat. 1498, 1501; Pub. L. 100–418, title I, §1214(b), Aug. 23, 1988, 102 Stat. 1156; Pub. L. 101–508, title I, §1204(c), Nov. 5, 1990, 104 Stat. 1388–11; Pub. L. 101–624, title XXV, §2511, Nov. 28, 1990, 104 Stat. 4073; Pub. L. 103–66, title I, §1106(c), Aug. 10, 1993, 107 Stat. 323, related to inspection of imported tobacco.
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal applicable to the 2005 and subsequent crops of tobacco, see section 643 of Pub. L. 108–357, set out as an Effective Date note under section 518 of this title.
Savings Provision
Repeal not to affect the liability of any person under this section with respect to the 2004 or an earlier crop of tobacco, see section 614 of Pub. L. 108–357, set out as a note under section 515 of this title.
§511s. Grading of tobacco
(1) In general
Not later than March 31, 2002, the Secretary of Agriculture (referred to in this section as the "Secretary") shall conduct referenda among producers of each kind of tobacco that is eligible for price support under the Agricultural Act of 1949 (7 U.S.C. 1421 et seq.) to determine whether such producers favor the mandatory grading of that kind of tobacco by the Secretary.
(2) Mandatory grading
(A) In general
If the Secretary determines that mandatory grading is favored by a majority of the producers of a kind of tobacco voting in the referendum, the Secretary is authorized and directed to ensure that the kind of tobacco is graded at the time of sale effective for the 2002 and subsequent marketing years.
(B) Fees
To the maximum extent practicable, the Secretary shall establish, collect, and use fees for the grading of tobacco required under this section in the same manner as user fees for the grading of tobacco sold at auction authorized under the Tobacco Inspection Act (7 U.S.C. 511 et seq.).
(3) Judicial review
A determination by the Secretary under this section shall not be subject to judicial review.
(Pub. L. 107–76, title VII, §759(a), Nov. 28, 2001, 115 Stat. 741.)
Editorial Notes
References in Text
The Agricultural Act of 1949, referred to in par. (1), is act Oct. 31, 1949, ch. 792, 63 Stat. 1051, which is classified principally to chapter 35A (§1421 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1421 of this title and Tables.
The Tobacco Inspection Act, referred to in par. (2)(B), is act Aug. 23, 1935, ch. 623, 49 Stat. 731, which is classified generally to this chapter. For complete classification of this Act to the Code, see section 511q of this title and Tables.
Codification
Section was enacted as part of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2002, and not as part of The Tobacco Inspection Act which comprises this chapter.
CHAPTER 21B—TOBACCO CONTROL
§§515 to 515k. Repealed. Pub. L. 108–357, title VI, §611(c), Oct. 22, 2004, 118 Stat. 1522
Section 515, act Apr. 25, 1936, ch. 249, §1, 49 Stat. 1239, related to tobacco production compacts between States.
Section 515a, act Apr. 25, 1936, ch. 249, §2, 49 Stat. 1240, defined terms as used in this chapter.
Section 515b, act Apr. 25, 1936, ch. 249, §3, 49 Stat. 1240, related to advancement of funds for administrative expenses.
Section 515c, act Apr. 25, 1936, ch. 249, §4, 49 Stat. 1240, related to designation of persons to provide advice with compact administration.
Section 515d, act Apr. 25, 1936, ch. 249, §5, 49 Stat. 1240, related to loans to certain associations of tobacco producers.
Section 515e, act Apr. 25, 1936, ch. 249, §6, 49 Stat. 1241, related to availability of Department of Agriculture records and facilities.
Section 515f, act Apr. 25, 1936, ch. 249, §7, 49 Stat. 1241, authorized appropriations and provided for disposition of repayments of advances or loans.
Section 515g, act Apr. 25, 1936, ch. 249, §8, 49 Stat. 1241, related to availability of funds to other agencies.
Section 515h, act Apr. 25, 1936, ch. 249, §9, 49 Stat. 1241, related to effect of compacts between States producing cigar tobacco on Puerto Rican commerce.
Section 515i, act Apr. 25, 1936, ch. 249, §10, 49 Stat. 1242, related to disposition of receipts from sales of marketing certificates.
Section 515j, act Apr. 25, 1936, ch. 249, §11, 49 Stat. 1242, related to separability of provisions.
Section 515k, act Apr. 25, 1936, ch. 249, §12, 49 Stat. 1242, authorized promulgation of rules and regulations.
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal applicable to the 2005 and subsequent crops of tobacco, see section 643 of Pub. L. 108–357, set out as an Effective Date note under section 518 of this title.
Short Title
Act Apr. 25, 1936, which was classified to this chapter, was popularly known as the "Tobacco Control Act".
Savings Provision
Pub. L. 108–357, title VI, §614, Oct. 22, 2004, 118 Stat. 1524, provided that: "The amendments made by this subtitle [subtitle A (§§611–614) of title VI of Pub. L. 108–357, amending sections 609, 1282, 1301, 1303, 1314h, 1361, 1371, 1373, 1375, 1378, 1379, 1428, 1433c–1, and 1441 of this title and section 714c of Title 15, Commerce and Trade, repealing sections 511r, 515 to 515k, 625, 1311 to 1314, 1314–1, 1314b, 1314b–1, 1314b–2, 1314c to 1314j, 1315, 1316, 1445, 1445–1, and 1445–2 of this title, and repealing provisions set out as a note under section 1314c of this title] shall not affect the liability of any person under any provision of law so amended with respect to the 2004 or an earlier crop of each kind of tobacco."
§§516, 517. Repealed. Pub. L. 102–237, title X, §1019, Dec. 13, 1991, 105 Stat. 1906
Section 516, act June 5, 1940, ch. 232, §1, 54 Stat. 231, prohibited exportation of seeds or plants without permit.
Section 517, act June 5, 1940, ch. 232, §2, 54 Stat. 231, provided penalty for violations.
CHAPTER 21C—TOBACCO REFORM
SUBCHAPTER I—TRANSITIONAL PAYMENTS TO TOBACCO QUOTA HOLDERS AND PRODUCERS OF TOBACCO
SUBCHAPTER II—IMPLEMENTATION AND TRANSITION
SUBCHAPTER I—TRANSITIONAL PAYMENTS TO TOBACCO QUOTA HOLDERS AND PRODUCERS OF TOBACCO
§518. Definitions
In this subchapter and subchapter II:
(1) Agricultural Act of 1949
The term "Agricultural Act of 1949" means the Agricultural Act of 1949 (7 U.S.C. 1421 et seq.), as in effect on the day before October 22, 2004.
(2) Agricultural Adjustment Act of 1938
The term "Agricultural Adjustment Act of 1938" means the Agricultural Adjustment Act of 1938 (7 U.S.C. 1281 et seq.), as in effect on the day before October 22, 2004.
(3) Considered planted
The term "considered planted" means tobacco that was planted, but failed to be produced as a result of a natural disaster, as determined by the Secretary.
(4) Contract
The term "contract" means a contract entered into under section 518a or 518b of this title.
(5) Contract payment
The term "contract payment" means a payment made under section 518a or 518b of this title pursuant to a contract.
(6) Producer of quota tobacco
The term "producer of quota tobacco" means an owner, operator, landlord, tenant, or sharecropper that shared in the risk of producing tobacco on a farm where tobacco was produced or considered planted pursuant to a tobacco farm poundage quota or farm acreage allotment established under part I of subtitle B of title III of the Agricultural Adjustment Act of 1938 (7 U.S.C. 1311 et seq.).
(7) Quota tobacco
The term 'quota tobacco' 1 means a kind of tobacco that is subject to a farm marketing quota or farm acreage allotment for the 2004 tobacco marketing year under a marketing quota or allotment program established under part I of subtitle B of title III of the Agricultural Adjustment Act of 1938 (7 U.S.C. 1311 et seq.).
(8) Tobacco
The term "tobacco" means each of the following kinds of tobacco:
(A) Flue-cured tobacco, comprising types 11, 12, 13, and 14.
(B) Fire-cured tobacco, comprising types 22 and 23.
(C) Dark air-cured tobacco, comprising types 35 and 36.
(D) Virginia sun-cured tobacco, comprising type 37.
(E) Virginia fire-cured tobacco, comprising type 21.
(F) Burley tobacco, comprising type 31.
(G) Cigar-filler and cigar-binder tobacco, comprising types 42, 43, 44, 53, 54, and 55.
(9) Tobacco quota holder
The term "tobacco quota holder" means a person that was an owner of a farm, as of October 22, 2004, for which a basic tobacco farm marketing quota or farm acreage allotment for quota tobacco was established for the 2004 tobacco marketing year.
(10) Tobacco Trust Fund
The term "Tobacco Trust Fund" means the Tobacco Trust Fund established under section 518e of this title.
(11) Secretary
The term "Secretary" means the Secretary of Agriculture.
(Pub. L. 108–357, title VI, §621, Oct. 22, 2004, 118 Stat. 1524.)
Editorial Notes
References in Text
The Agricultural Act of 1949, referred to in par. (1), is act Oct. 31, 1949, ch. 792, 63 Stat. 1051, which is classified principally to chapter 35A (§1421 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1421 of this title and Tables.
The Agricultural Adjustment Act of 1938, referred to in pars. (2), (6), and (7), is act Feb. 16, 1938, ch. 30, 52 Stat. 31, which is classified principally to chapter 35 (§1281 et seq.) of this title. Part I of subtitle B of title III of the Act was classified to subpart I (§1311 et seq.) of part B of subchapter II of chapter 35 of this title prior to repeal by Pub. L. 108–357, title VI, §611(a), Oct. 22, 2004, 118 Stat. 1522. For complete classification of this Act to the Code, see section 1281 of this title and Tables.
Statutory Notes and Related Subsidiaries
Effective Date
Pub. L. 108–357, title VI, §643, Oct. 22, 2004, 118 Stat. 1536, provided that: "This title [see Short Title note below] and the amendments made by this title shall apply to the 2005 and subsequent crops of each kind of tobacco."
Short Title
Pub. L. 108–357, title VI, §601, Oct. 22, 2004, 118 Stat. 1521, provided that: "This title [enacting this chapter, amending sections 609, 1282, 1301, 1303, 1314h, 1361, 1371, 1373, 1375, 1378, 1379, 1428, 1433c–1, and 1441 of this title and section 714c of Title 15, Commerce and Trade, repealing sections 511r, 515 to 515k, 625, 1311 to 1314, 1314–1, 1314b, 1314b–1, 1314b–2, 1314c to 1314j, 1315, 1316, 1445, 1445–1, and 1445–2 of this title, enacting provisions set out as notes under this section and section 515 of this title, and repealing provisions set out as a note under section 1314c of this title] may be cited as the 'Fair and Equitable Tobacco Reform Act of 2004'."
§518a. Contract payments to tobacco quota holders
(a) Contract offered
The Secretary shall offer to enter into a contract with each tobacco quota holder under which the tobacco quota holder shall be entitled to receive payments under this section in exchange for the termination of tobacco marketing quotas and related price support under the amendments made by sections 611 and 612.1 The contract payments shall constitute full and fair consideration for the termination of such tobacco marketing quotas and related price support.
(b) Eligibility
To be eligible to enter into a contract to receive a contract payment under this section, a person shall submit to the Secretary an application containing such information as the Secretary may require to demonstrate to the satisfaction of the Secretary that the person is a tobacco quota holder. The application shall be submitted within such time, in such form, and in such manner as the Secretary may require.
(c) Base quota level
(1) Establishment
The Secretary shall establish a base quota level applicable to each tobacco quota holder identified under subsection (b).
(2) Poundage quotas
Subject to adjustment under subsection (d), for each kind of tobacco for which the marketing quota is expressed in pounds, the base quota level for each tobacco quota holder shall be equal to the basic quota for quota tobacco established for the 2002 tobacco marketing year under a marketing quota program established under part I of subtitle B of title III of the Agriculture 2 Adjustment Act of 1938 [7 U.S.C. 1311 et seq.] on the farm owned by the tobacco quota holder.
(3) Marketing quotas other than poundage quotas
Subject to adjustment under subsection (d), for each kind of tobacco for which there is marketing quota or allotment on an acreage basis, the base quota level for each tobacco quota holder shall be the quantity equal to the product obtained by multiplying—
(A) the basic tobacco farm marketing quota or allotment for the 2002 marketing year established by the Secretary for quota tobacco owned by the tobacco quota holder; by
(B) the average production yield, per acre, for the period covering the 2001, 2002, and 2003 crop years for that kind of tobacco in the county in which the quota tobacco is located.
(d) Treatment of certain contracts and agreements
(1) Effect of purchase contract
If there was an agreement for the purchase of all or part of a farm described in subsection (c) as of October 22, 2004, and the parties to the sale are unable to agree to the disposition of eligibility for contract payments, the Secretary, taking into account any transfer of quota that has been agreed to, shall provide for the equitable division of the contract payments among the parties by adjusting the determination of who is the tobacco quota holder with respect to particular pounds or allotment of the quota.
(2) Effect of agreement for permanent quota transfer
If the Secretary determines that there was in existence, as of the day before October 22, 2004, an agreement for the permanent transfer of quota, but that the transfer was not completed by that date, the Secretary shall consider the tobacco quota holder to be the party to the agreement that, as of that date, was the owner of the farm to which the quota was to be transferred.
(e) Contract payments
(1) Calculation of total payment amount
The total amount of contract payments to which an eligible tobacco quota holder is entitled under this section, with respect to a kind of tobacco, shall be equal to the product obtained by multiplying—
(A) $7.00 per pound; by
(B) the base quota level of the tobacco quota holder determined under subsection (c) with respect to that kind of tobacco.
(2) Annual payment
During each of fiscal years 2005 through 2014, the Secretary shall make a contract payment under this section to each eligible tobacco quota holder, with respect to a kind of tobacco, in an amount equal to 1/10 of the amount determined under paragraph (1) for the tobacco quota holder for that kind of tobacco.
(f) Death of tobacco quota holder
If a tobacco quota holder who is entitled to contract payments under this section dies and is survived by a spouse or one or more dependents, the right to receive the payments shall transfer to the surviving spouse or, if there is no surviving spouse, to the estate of the tobacco quota holder.
(Pub. L. 108–357, title VI, §622, Oct. 22, 2004, 118 Stat. 1525.)
Editorial Notes
References in Text
Sections 611 and 612, referred to in subsec. (a), are sections 611 and 612 of Pub. L. 108–357, which amended sections 609, 1282, 1301, 1303, 1361, 1371, 1373, 1375, 1378, 1379, 1428, 1433c–1, and 1441 of this title and section 714c of Title 15, Commerce and Trade, repealed sections 511r, 515 to 515k, 625, 1311 to 1314, 1314–1, 1314b, 1314b–1, 1314b–2, 1314c to 1314j, 1315, 1316, 1445, 1445–1, and 1445–2 of this title, and repealed provisions set out as a note under section 1314c of this title.
Part I of subtitle B of title III of the Agricultural Adjustment Act of 1938, referred to in subsec. (c)(2), was classified to subpart I (§1311 et seq.) of part B of subchapter II of chapter 35 of this title prior to repeal by Pub. L. 108–357, title VI, §611(a), Oct. 22, 2004, 118 Stat. 1522. For complete classification of this Act to the Code, see section 1281 of this title and Tables.
Statutory Notes and Related Subsidiaries
Effective Date
Section applicable to the 2005 and subsequent crops of tobacco, see section 643 of Pub. L. 108–357, set out as a note under section 518 of this title.
1 See References in Text note below.
2 So in original. Probably should be "Agricultural".
§518b. Contract payments for producers of quota tobacco
(a) Contract offered
The Secretary shall offer to enter into a contract with each producer of quota tobacco under which the producer of quota tobacco shall be entitled to receive payments under this section in exchange for the termination of tobacco marketing quotas and related price support under the amendments made by sections 611 and 612.1 The contract payments shall constitute full and fair consideration for the termination of such tobacco marketing quotas and related price support.
(b) Eligibility
(1) Application and determination
To be eligible to enter into a contract to receive a contract payment under this section, a person shall submit to the Secretary an application containing such information as the Secretary may require to demonstrate to the satisfaction of the Secretary that the person is a producer of quota tobacco. The application shall be submitted within such time, in such form, and in such manner as the Secretary may require.
(2) Effect of multiple producers for same quota tobacco
If, on the basis of the applications submitted under paragraph (1) or other information, the Secretary determines that two or more persons are a producer of the same quota tobacco, the Secretary shall provide for an equitable distribution among the persons of the contract payments made under this section with respect to that quota tobacco, based on relative share of such persons in the risk of producing the quota tobacco and such other factors as the Secretary considers appropriate.
(c) Base quota level
(1) Establishment
The Secretary shall establish a base quota level applicable to each producer of quota tobacco, as determined under this subsection.
(2) Flue-cured and burley tobacco
In the case of Flue-cured tobacco (types 11, 12, 13, and 14) and Burley tobacco (type 31), the base quota level for each producer of quota tobacco shall be equal to the effective tobacco marketing quota (irrespective of disaster lease and transfers) under part I of subtitle B of title III of the Agriculture 2 Adjustment Act of 1938 [7 U.S.C. 1311 et seq.] for the 2002 marketing year for quota tobacco produced on the farm.
(3) Other kinds of tobacco
In the case of each kind of tobacco (other than tobacco covered by paragraph (2)), for the purpose of calculating a contract payment to a producer of quota tobacco, the base quota level for the producer of quota tobacco shall be the quantity obtained by multiplying—
(A) the basic tobacco farm acreage allotment for the 2002 marketing year established by the Secretary for quota tobacco produced on the farm; by
(B) the average annual yield, per acre, of quota tobacco produced on the farm for the period covering the 2001, 2002, and 2003 crop years.
(d) Contract payments
(1) Calculation of total payment amount
Subject to subsection (b)(2), the total amount of contract payments to which an eligible producer of quota tobacco is entitled under this section, with respect to a kind of tobacco, shall be equal to the product obtained by multiplying—
(A) subject to paragraph (2), $3.00 per pound; by
(B) the base quota level of the producer of quota tobacco determined under subsection (c) with respect to that kind of tobacco.
(2) Annual payment
During each of fiscal years 2005 through 2014, the Secretary shall make a contract payment under this section to each eligible producer of tobacco, with respect to a kind of tobacco, in an amount equal to 1/10 of the amount determined under paragraph (1) for the producer for that kind of tobacco.
(3) Variable payment rates
The rate for payments to a producer of quota tobacco under paragraph (1)(A) shall be equal to—
(A) in the case of a producer of quota tobacco that produced quota tobacco marketed, or considered planted, under a marketing quota in all three of the 2002, 2003, or 2004 tobacco marketing years, the rate prescribed under paragraph (1)(A);
(B) in the case of a producer of quota tobacco that produced quota tobacco marketed, or considered planted, under a marketing quota in only two of those tobacco marketing years, 2/3 of the rate prescribed under paragraph (1)(A);
(C) in the case of a producer of quota tobacco that produced quota tobacco marketed, or considered planted, under a marketing quota in only one of those tobacco marketing years, 1/3 of the rate prescribed under paragraph (1)(A).
(e) Death of tobacco producer
If a producer of quota tobacco who is entitled to contract payments under this section dies and is survived by a spouse or one or more dependents, the right to receive the contract payments shall transfer to the surviving spouse or, if there is no surviving spouse, to the estate of the producer.
(Pub. L. 108–357, title VI, §623, Oct. 22, 2004, 118 Stat. 1527.)
Editorial Notes
References in Text
Sections 611 and 612, referred to in subsec. (a), are sections 611 and 612 of Pub. L. 108–357, which amended sections 609, 1282, 1301, 1303, 1361, 1371, 1373, 1375, 1378, 1379, 1428, 1433c–1, and 1441 of this title and section 714c of Title 15, Commerce and Trade, repealed sections 511r, 515, 515a to 515k, 625, 1311 to 1314, 1314–1, 1314b, 1314b–1, 1314b–2, 1314c to 1314j, 1315, 1316, 1445, 1445–1, and 1445–2 of this title, and repealed provisions set out as a note under section 1314c of this title.
Part I of subtitle B of title III of the Agricultural Adjustment Act of 1938, referred to in subsec. (c)(2), was classified to subpart I (§1311 et seq.) of part B of subchapter II of chapter 35 of this title prior to repeal by Pub. L. 108–357, title VI, §611(a), Oct. 22, 2004, 118 Stat. 1522. For complete classification of this Act to the Code, see section 1281 of this title and Tables.
Statutory Notes and Related Subsidiaries
Effective Date
Section applicable to the 2005 and subsequent crops of tobacco, see section 643 of Pub. L. 108–357, set out as a note under section 518 of this title.
1 See References in Text note below.
2 So in original. Probably should be "Agricultural".
§518c. Administration
(a) Time for payment of contract payments
Contract payments required to be made for a fiscal year shall be made by the Secretary as soon as practicable.
(b) Use of county committees to resolve disputes
Any dispute regarding the eligibility of a person to enter into a contract or to receive contract payments, and any dispute regarding the amount of a contract payment, may be appealed to the county committee established under section 590h of title 16 for the county or other area in which the farming operation of the person is located.
(c) Role of National Appeals Division
Any adverse determination of a county committee under subsection (b) may be appealed to the National Appeals Division established under subtitle H of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6991 et seq.).
(d) Use of financial institutions
The Secretary may use a financial institution to manage assets, make contract payments, and otherwise carry out this title.1
(e) Payment to financial institutions
The Secretary shall permit a tobacco quota holder or producer of quota tobacco entitled to contract payments to assign to a financial institution the right to receive the contract payments. Upon receiving notification of the assignment, the Secretary shall make subsequent contract payments for the tobacco quota holder or producer of quota tobacco directly to the financial institution designated by the tobacco quota holder or producer of quota tobacco. The Secretary shall make information available to tobacco quota holders and producers of quota tobacco regarding their ability to elect to have the Secretary make payments directly to a financial institution under this subsection so that they may obtain a lump sum or other payment.
(Pub. L. 108–357, title VI, §624, Oct. 22, 2004, 118 Stat. 1528.)
Editorial Notes
References in Text
The Department of Agriculture Reorganization Act of 1994, referred to in subsec. (c), is title II of Pub. L. 103–354, Oct. 13, 1994, 108 Stat. 3209. Subtitle H of the Act is classified principally to subchapter VIII (§6991 et seq.) of chapter 98 of this title. For complete classification of this Act to the Code, see Tables.
This title, referred to in subsec. (d), means title VI of Pub. L. 108–357, which enacted this chapter, amended sections 609, 1282, 1301, 1303, 1314h, 1361, 1371, 1373, 1375, 1378, 1379, 1428, 1433c–1, and 1441 of this title and section 714c of Title 15, Commerce and Trade, repealed sections 511r, 515 to 515k, 625, 1311 to 1314, 1314–1, 1314b, 1314b–1, 1314b–2, 1314c to 1314j, 1315, 1316, 1445, 1445–1, and 1445–2 of this title, enacted provisions set out as notes under sections 515 and 518 of this title, and repealed provisions set out as a note under section 1314c of this title. For complete classification of title VI to the Code, see Short Title note set out under section 518 of this title and Tables.
Statutory Notes and Related Subsidiaries
Effective Date
Section applicable to the 2005 and subsequent crops of tobacco, see section 643 of Pub. L. 108–357, set out as a note under section 518 of this title.
1 See References in Text note below.
§518d. Use of assessments as source of funds for payments
(a) Definitions
In this section:
(1) Base period
The term "base period' 1 means the one-year period ending the June 30 before the beginning of a fiscal year.
(2) Gross domestic volume
The term "gross domestic volume" means the volume of tobacco products—
(A) removed (as defined by section 5702 of title 26); and
(B) not exempt from tax under chapter 52 of title 26 at the time of their removal under that chapter or the Harmonized Tariff Schedule of the United States.
(3) Market share
The term "market share" means the share of each manufacturer or importer of a class of tobacco product (expressed as a decimal to the fourth place) of the total volume of domestic sales of the class of tobacco product during the base period for a fiscal year for an assessment under this section.
(b) Quarterly assessments
(1) Imposition of assessment
The Secretary, acting through the Commodity Credit Corporation, shall impose quarterly assessments during each of fiscal years 2005 through 2014, calculated in accordance with this section, on each tobacco product manufacturer and tobacco product importer that sells tobacco products in domestic commerce in the United States during that fiscal year.
(2) Amounts
Beginning with the calendar quarter ending on December 31 of each of fiscal years 2005 through 2014, the assessment payments over each four-calendar quarter period shall be sufficient to cover—
(A) the contract payments made under sections 518a and 518b of this title during that period; and
(B) other expenditures from the Tobacco Trust Fund made during the base quarter periods corresponding to the four calendar quarters of that period.
(3) Deposit
Assessments collected under this section shall be deposited in the Tobacco Trust Fund.
(c) Assessments for classes of tobacco products
(1) Initial allocation
The percentage of the total amount required by subsection (b) to be assessed against, and paid by, the manufacturers and importers of each class of tobacco product in fiscal year 2005 shall be as follows:
(A) For cigarette manufacturers and importers, 96.331 percent.
(B) For cigar manufacturers and importers, 2.783 percent.
(C) For snuff manufacturers and importers, 0.539 percent.
(D) For roll-your-own tobacco manufacturers and importers, 0.171 percent.
(E) For chewing tobacco manufacturers and importers, 0.111 percent.
(F) For pipe tobacco manufacturers and importers, 0.066 percent.
(2) Subsequent allocations
For subsequent fiscal years, the Secretary shall periodically adjust the percentage of the total amount required under subsection (b) to be assessed against, and paid by, the manufacturers and importers of each class of tobacco product specified in paragraph (1) to reflect changes in the share of gross domestic volume held by that class of tobacco product.
(3) Effect of insufficient amounts
If the Secretary determines that the assessment imposed under subsection (b) will result in insufficient amounts to carry out this subchapter during a fiscal year, the Secretary shall assess such additional amounts as the Secretary determines to be necessary to carry out this subchapter during that fiscal year. The additional amount shall be allocated to manufacturers and importers of each class of tobacco product specified in paragraph (1) in the same manner and based on the same percentages applicable under paragraph (1) or (2) for that fiscal year.
(d) Notification and timing of assessments
(1) Notification of assessments
The Secretary shall provide each manufacturer or importer subject to an assessment under subsection (b) with written notice setting forth the amount to be assessed against the manufacturer or importer for each quarterly payment period. The notice for a quarterly period shall be provided not later than 30 days before the date payment is due under paragraph (3).
(2) Content
The notice shall include the following information with respect to the quarterly period used by the Secretary in calculating the amount:
(A) The total combined assessment for all manufacturers and importers of tobacco products.
(B) The total assessment with respect to the class of tobacco products manufactured or imported by the manufacturer or importer.
(C) Any adjustments to the percentage allocations among the classes of tobacco products made pursuant to paragraph (2) or (3) of subsection (c).
(D) The volume of gross sales of the applicable class of tobacco product treated as made by the manufacturer or importer for purposes of calculating the manufacturer's or importer's market share under subsection (f).
(E) The total volume of gross sales of the applicable class of tobacco product that the Secretary treated as made by all manufacturers and importers for purposes of calculating the manufacturer's or importer's market share under subsection (f).
(F) The manufacturer's or importer's market share of the applicable class of tobacco product, as determined by the Secretary under subsection (f).
(G) The market share, as determined by the Secretary under subsection (f), of each other manufacturer and importer, for each applicable class of tobacco product.
(3) Timing of assessment payments
(A) Collection date
Assessments shall be collected at the end of each calendar year quarter, except that the Secretary shall ensure that the final assessment due under this section is collected not later than September 30, 2014.
(B) Base period quarter
The assessment for a calendar year quarter shall correspond to the base period quarter that ended at the end of the preceding calendar year quarter.
(e) Allocation of assessment within each class of tobacco product
(1) Pro rata basis
The assessment for each class of tobacco product specified in subsection (c)(1) shall be allocated on a pro rata basis among manufacturers and importers based on each manufacturer's or importer's share of gross domestic volume.
(2) Limitation
No manufacturer or importer shall be required to pay an assessment that is based on a share that is in excess of the manufacturer's or importer's share of domestic volume.
(f) Allocation of total assessments by market share
The amount of the assessment for each class of tobacco product specified in subsection (c)(1) to be paid by each manufacturer or importer of that class of tobacco product shall be determined for each quarterly payment period by multiplying—
(1) the market share of the manufacturer or importer, as calculated with respect to that payment period, of the class of tobacco product; by
(2) the total amount of the assessment for that quarterly payment period under subsection (c), for the class of tobacco product.
(g) Determination of volume of domestic sales
(1) In general
The calculation of the volume of domestic sales of a class of tobacco product by a manufacturer or importer, and by all manufacturers and importers as a group, shall be made by the Secretary based on information provided by the manufacturers and importers pursuant to subsection (h), as well as any other relevant information provided to or obtained by the Secretary.
(2) Gross domestic volume
The volume of domestic sales shall be calculated based on gross domestic volume.
(3) Measurement
For purposes of the calculations under this subsection and the certifications under subsection (h) by the Secretary, the volumes of domestic sales shall be measured by—
(A) in the case of cigarettes and cigars, the number of cigarettes and cigars; and
(B) in the case of the other classes of tobacco products specified in subsection (c)(1), in terms of number of pounds, or fraction thereof, of those products.
(h) Measurement of volume of domestic sales
(1) Submission of information
Each manufacturer and importer of tobacco products shall submit to the Secretary a certified copy of each of the returns or forms described by paragraph (2) that are required to be filed with a Federal agency on the same date that those returns or forms are filed, or required to be filed, with the agency.
(2) Returns and forms
The returns and forms described by this paragraph are those returns and forms that relate to—
(A) the removal of tobacco products into domestic commerce (as defined by section 5702 of title 26); and
(B) the payment of the taxes imposed under charter 2 52 of title 26, including AFT Form 5000.24 and United States Customs Form 7501 under currently applicable regulations.
(3) Effect of failure to provide required information
Any person that knowingly fails to provide information required under this subsection or that provides false information under this subsection shall be subject to the penalties described in section 1003 of title 18. The Secretary may also assess against the person a civil penalty in an amount not to exceed two percent of the value of the kind of tobacco products manufactured or imported by the person during the fiscal year in which the violation occurred, as determined by the Secretary.
(i) Challenge to assessment
(1) Appeal to Secretary
A manufacturer or importer subject to this section may contest an assessment imposed on the manufacturer or importer under this section by notifying the Secretary, not later than 30 business days after receiving the assessment notification required by subsection (d), that the manufacturer or importer intends to contest the assessment.
(2) Information
Not later than 180 days after October 22, 2004, the Secretary shall establish by regulation a procedure under which a manufacturer or importer contesting an assessment under this subsection may present information to the Secretary to demonstrate that the assessment applicable to the manufacturer or importer is incorrect. In challenging the assessment, the manufacturer or importer may use any information that is available, including third party data on industry or individual company sales volumes.
(3) Revision
If a manufacturer or importer establishes that the initial determination of the amount of an assessment is incorrect, the Secretary shall revise the amount of the assessment so that the manufacturer or importer is required to pay only the amount correctly determined.
(4) Time for review
Not later than 30 days after receiving notice from a manufacturer or importer under paragraph (1), the Secretary shall—
(A) decide whether the information provided to the Secretary under paragraph (2), and any other information that the Secretary determines is appropriate, is sufficient to establish that the original assessment was incorrect; and
(B) make any revisions necessary to ensure that each manufacturer and importer pays only its correct pro rata share of total gross domestic volume from all sources.
(5) Immediate payment of undisputed amounts
The regulations promulgated by the Secretary under paragraph (2) shall provide for the immediate payment by a manufacturer or importer challenging an assessment of that portion of the assessment that is not in dispute. The manufacturer and importer may place into escrow, in accordance with such regulations, only the portion of the assessment being challenged in good faith pending final determination of the claim.
(j) Judicial review
(1) In general
Any manufacturer or importer aggrieved by a determination of the Secretary with respect to the amount of any assessment may seek review of the determination in the United States District Court for the District of Columbia or for the district in which the manufacturer or importer resides or has its principal place of business at any time following exhaustion of the administrative remedies available under subsection (i).
(2) Time limits
Administrative remedies shall be deemed exhausted if no decision by the Secretary is made within the time limits established under subsection (i)(4).
(3) Excessive assessments
The court shall restrain collection of the excessive portion of any assessment or order a refund of excessive assessments already paid, along with interest calculated at the rate prescribed in section 3717 of title 31, if it finds that the Secretary's determination is not supported by a preponderance of the information available to the Secretary.
(k) Termination date
The authority provided by this section to impose assessments terminates on September 30, 2014.
(Pub. L. 108–357, title VI, §625, Oct. 22, 2004, 118 Stat. 1529.)
Editorial Notes
References in Text
The Harmonized Tariff Schedule of the United States, referred to in subsec. (a)(2)(B), is not set out in the Code. See Publication of Harmonized Tariff Schedule note set out under section 1202 of Title 19, Customs Duties.
Statutory Notes and Related Subsidiaries
Effective Date
Section applicable to the 2005 and subsequent crops of tobacco, see section 643 of Pub. L. 108–357, set out as a note under section 518 of this title.
2 So in original. Probably should be "chapter".
§518e. Tobacco Trust Fund
(a) Establishment
There is established in the Commodity Credit Corporation a revolving trust fund, to be known as the "Tobacco Trust Fund", which shall be used in carrying out this subchapter. The Tobacco Trust Fund shall consist of the following:
(1) Assessments collected under section 518d of this title.
(2) Such amounts as are necessary from the Commodity Credit Corporation.
(3) Any interest earned on investment of amounts in the Tobacco Trust Fund under subsection (c).
(b) Expenditures
(1) Authorized expenditures
Subject to paragraph (2), and notwithstanding any other provision of law, the Secretary shall use amounts in the Tobacco Trust Fund, in such amounts as the Secretary determines are necessary—
(A) to make payments under sections 518a and 518b of this title;
(B) to provide reimbursement under section 519(c) of this title;
(C) to reimburse the Commodity Credit Corporation for costs incurred by the Commodity Credit Corporation under paragraph (2); and
(D) to make payments to financial institutions to satisfy contractual obligations under section 518a or 518b of this title.
(2) Expenditures by Commodity Credit Corporation
Notwithstanding any other provision of law, the Secretary shall use the funds, facilities, and authorities of the Commodity Credit Corporation to make payments described in paragraph (1). Not later than January 1, 2015, the Secretary shall use amounts in the Tobacco Trust Fund to fully reimburse, with interest, the Commodity Credit Corporation for all funds of the Commodity Credit Corporation expended under the authority of this paragraph. Administrative costs incurred by the Secretary or the Commodity Credit Corporation to carry out this title 1 may not be paid using amounts in the Tobacco Trust Fund.
(c) Investment of amounts
(1) In general
The Commodity Credit Corporation shall invest such portion of the amounts in the Tobacco Trust Fund as are not, in the judgment of the Commodity Credit Corporation, required to meet current expenditures.
(2) Interest-bearing obligations
Investments may be made only in interest-bearing obligations of the United States.
(3) Acquisition of obligations
For the purpose of investments under paragraph (1), obligations may be acquired—
(A) on original issue at the issue price; or
(B) by purchase of outstanding obligations at the market price.
(4) Sale of obligations
Any obligation acquired by the Tobacco Trust Fund may be sold by the Commodity Credit Corporation at the market price.
(5) Credits to Fund
The interest on, and the proceeds from the sale or redemption of, any obligations held in the Tobacco Trust Fund shall be credited to and form a part of the Fund.
(Pub. L. 108–357, title VI, §626, Oct. 22, 2004, 118 Stat. 1533.)
Editorial Notes
References in Text
This title, referred to in subsec. (b)(2), means title VI of Pub. L. 108–357, which enacted this chapter, amended sections 609, 1282, 1301, 1303, 1314h, 1361, 1371, 1373, 1375, 1378, 1379, 1428, 1433c–1, and 1441 of this title and section 714c of Title 15, Commerce and Trade, repealed sections 511r, 515 to 515k, 625, 1311 to 1314, 1314–1, 1314b, 1314b–1, 1314b–2, 1314c to 1314j, 1315, 1316, 1445, 1445–1, and 1445–2 of this title, enacted provisions set out as notes under sections 515 and 518 of this title, and repealed provisions set out as a note under section 1314c of this title. For complete classification of title VI to the Code, see Short Title note set out under section 518 of this title and Tables.
Statutory Notes and Related Subsidiaries
Effective Date
Section applicable to the 2005 and subsequent crops of tobacco, see section 643 of Pub. L. 108–357, set out as a note under section 518 of this title.
1 See References in Text note below.
§518f. Limitation on total expenditures
The total amount expended by the Secretary from the Tobacco Trust Fund to make payments under sections 518a and 518b of this title and for the other authorized purposes of the Fund shall not exceed $10,140,000,000.
(Pub. L. 108–357, title VI, §627, Oct. 22, 2004, 118 Stat. 1534.)
Statutory Notes and Related Subsidiaries
Effective Date
Section applicable to the 2005 and subsequent crops of tobacco, see section 643 of Pub. L. 108–357, set out as a note under section 518 of this title.
SUBCHAPTER II—IMPLEMENTATION AND TRANSITION
§519. Treatment of tobacco loan pool stocks and outstanding loan costs
(a) Disposal of stocks
To provide for the orderly disposition of quota tobacco held by an association that has entered into a loan agreement with the Commodity Credit Corporation under section 106A or 106B of the Agricultural Act of 1949 (7 U.S.C. 1445–1, 1445–2) (referred to in this section as an "association"), loan pool stocks for each kind of tobacco held by the association shall be disposed of in accordance with this section.
(b) Disposal by associations
For each kind of tobacco held by an association, the association shall be responsible for the disposal of a specific quantity of the loan pool stocks for that kind of tobacco held by the association. The quantity transferred to the association for disposal shall be equal to the quantity determined by dividing—
(1) the amount of funds held by the association in the No Net Cost Tobacco Fund and the No Net Cost Tobacco Account established under sections 106A and 106B of the Agricultural Act of 1949 (7 U.S.C. 1445–1, 1445–2) for the kind of tobacco; by
(2) the average list price per pound for the kind of tobacco, as determined by the Secretary.
(c) Disposal of remainder by Commodity Credit Corporation
(1) Disposal
Any loan pool stocks of a kind of tobacco of an association that are not transferred to the association under subsection (b) for disposal shall be disposed of by Commodity Credit Corporation in a manner determined by the Secretary.
(2) Reimbursement
As required by section 518e(b)(1)(B) of this title, the Secretary shall transfer from the Tobacco Trust Fund to the No Net Cost Tobacco Fund or the No Net Cost Tobacco Account of an association established under section 106A or 106B of the Agricultural Act of 1949 (7 U.S.C. 1445–1, 1445–2) such amounts as the Secretary determines will be adequate to reimburse the Commodity Credit Corporation for any net losses that the Corporation may sustain under its loan agreements with the association.
(d) Transfer of remaining no net cost funds
Any funds in the No Net Cost Tobacco Fund or the No Net Cost Tobacco Account of an association established under sections 106A and 106B of the Agricultural Act of 1949 (7 U.S.C. 1445–1, 1445–2) that remain after the application of subsections (b) and (c) shall be transferred to the association for distribution to producers of quota tobacco in accordance with a plan approved by the Secretary.
(Pub. L. 108–357, title VI, §641, Oct. 22, 2004, 118 Stat. 1534.)
Editorial Notes
References in Text
Sections 106A and 106B of the Agricultural Act of 1949, referred to in text, were classified to sections 1445–1 and 1445–2, respectively, of this title prior to repeal by Pub. L. 108–357, title VI, §612(a), Oct. 22, 2004, 118 Stat. 1523.
Statutory Notes and Related Subsidiaries
Effective Date
Section applicable to the 2005 and subsequent crops of tobacco, see section 643 of Pub. L. 108–357, set out as a note under section 518 of this title.
§519a. Regulations
(a) In general
The Secretary may promulgate such regulations as are necessary to implement this title 1 and the amendments made by this title.1
(b) Procedure
The promulgation of the regulations and administration of this title 1 and the amendments made by this title 1 shall be made without regard to—
(1) the notice and comment provisions of section 553 of title 5;
(2) the Statement of Policy of the Secretary of Agriculture effective July 24, 1971 (36 Fed. Reg. 13804), relating to notices of proposed rulemaking and public participation in rulemaking; and
(3) chapter 35 of title 44 (commonly known as the "Paperwork Reduction Act").
(c) Congressional review of agency rulemaking
In carrying out this section, the Secretary shall use the authority provided under section 808 of title 5.
(Pub. L. 108–357, title VI, §642, Oct. 22, 2004, 118 Stat. 1535.)
Editorial Notes
References in Text
This title, referred to in subsecs. (a) and (b), means title VI of Pub. L. 108–357, which enacted this chapter, amended sections 609, 1282, 1301, 1303, 1314h, 1361, 1371, 1373, 1375, 1378, 1379, 1428, 1433c–1, and 1441 of this title and section 714c of Title 15, Commerce and Trade, repealed sections 511r, 515 to 515k, 625, 1311 to 1314, 1314–1, 1314b, 1314b–1, 1314b–2, 1314c to 1314j, 1315, 1316, 1445, 1445–1, and 1445–2 of this title, enacted provisions set out as notes under sections 515 and 518 of this title, and repealed provisions set out as a note under section 1314c of this title. For complete classification of title VI to the Code, see Short Title note set out under section 518 of this title and Tables.
Statutory Notes and Related Subsidiaries
Effective Date
Section applicable to the 2005 and subsequent crops of tobacco, see section 643 of Pub. L. 108–357, set out as a note under section 518 of this title.
1 See References in Text note below.
CHAPTER 22—AGRICULTURAL MARKETING
§§521 to 535. Omitted or Transferred
Editorial Notes
Codification
Sections, act June 15, 1929, ch. 24, §§1–15, 46 Stat. 11, as amended, were omitted or transferred as set forth below.
Section 521, which related to declaration of policy, effective merchandising of agricultural commodities, speculation, cooperative marketing, surpluses and administration of the chapter, was transferred to section 1141 of Title 12, Banks and Banking.
Section 522, which related to appointment, compensation, qualifications, term of office, and expenses of Governor of Farm Credit Administration, was transferred to section 1141a of Title 12, and was repealed by act Aug. 6, 1953, ch. 335, §19, 67 Stat. 400. See section 2244 et seq. of Title 12.
Section 523, which related to designation of agricultural commodities and establishment of advisory commodity committees, was omitted.
Section 524, which related to general powers of Farm Credit Administration, was transferred to section 1141b of Title 12, and was subsequently repealed by Pub. L. 115–334.
Section 525, which related to special powers of Administration, was transferred to section 1141c of Title 12, and was subsequently repealed by Pub. L. 115–334.
Section 526, which related to authorization of a revolving fund, was transferred to section 1141d of Title 12, and was subsequently repealed by Pub. L. 115–334.
Section 527, which related to loans to cooperative associations, was transferred to section 1141e of Title 12, and was subsequently repealed by Pub. L. 115–334.
Section 528, which related to miscellaneous loan provisions, was transferred to section 1141f of Title 12, and was subsequently repealed by Pub. L. 115–334.
Section 529, which provided for recognition, upon application of advisory commodity committee, of stabilization corporations for commodities, and prescribed functions and operations in connection therewith, was transferred to section 1141g of Title 12, and was subsequently omitted from the Code as obsolete.
Section 530, which related to clearing house associations, was omitted.
Section 531, which related to insurance against loss through price decline, was omitted.
Section 532, which related to appropriation for administrative expenses, was omitted.
Section 533, which related to avoidance of duplication, cooperation with other governmental establishments, obtaining information and data, cooperation with States, Territories, and agencies or subdivisions thereof, indication of research problems, and transfer of offices and functions, etc. was transferred to section 1141h of Title 12.
Section 534, which related to examination of books and accounts, was transferred to section 1141i of Title 12, and was subsequently repealed by Pub. L. 115–334.
Section 535, which related to miscellaneous provisions, was transferred to section 1141j of Title 12.
CHAPTER 23—FOREIGN AGRICULTURAL SERVICE
§§541 to 545. Repealed. Aug. 13, 1946, ch. 957, title XI, §1131(56), 60 Stat. 1039
Sections 541 to 545, act June 5, 1930, ch. 399, 46 Stat. 497–499, related to Foreign Agricultural Service.
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective three months following Aug. 13, 1946, see section 1141 of act Aug. 13, 1946, ch. 957, title XI, 60 Stat. 1040.
CHAPTER 24—PERISHABLE AGRICULTURAL COMMODITIES
§§551 to 568. Transferred
Editorial Notes
Codification
Sections 551 to 568 of this title, which were comprised of act June 10, 1930, ch. 436, §§1–18, 46 Stat. 531, as amended, known as the Perishable Agricultural Commodities Act, 1930, were transferred to sections 499a to 499r of chapter 20A of this title.
CHAPTER 25—EXPORT STANDARDS FOR APPLES
§581. Standards of export; establishment; shipping without certificate forbidden; hearings
It shall be unlawful for any person to ship or offer for shipment or for any carrier, or any steamship company, or any person to transport or receive for transportation to any foreign destination, except as provided in this chapter, any apples in packages which are not accompanied by a certificate issued under authority of the Secretary of Agriculture showing that such apples are of a Federal or State grade which meets the minimum of quality established by the Secretary for shipment in export. The Secretary is authorized to prescribe, by regulations, the requirements, other than those of grade, which the fruit must meet before certificates are issued. The Secretary shall provide opportunity, by public hearing or otherwise, for interested persons to examine and make recommendation with respect to any standard of export proposed to be established or designated, or regulation prescribed, by the Secretary for the purposes of this chapter.
(June 10, 1933, ch. 59, §1, 48 Stat. 123; Pub. L. 106–96, §1(c), Nov. 12, 1999, 113 Stat. 1321.)
Editorial Notes
Amendments
1999—Pub. L. 106–96 struck out "and/or pears" after "any apples" and "or pears" after "such apples".
Statutory Notes and Related Subsidiaries
Short Title
Act June 10, 1933, ch. 59, §11, as added by Pub. L. 106–96, §1(a), Nov. 12, 1999, 113 Stat. 1321, provided that: "This Act [enacting this chapter] may be cited as the 'Export Apple Act'.".
§582. Notice of establishment of standards; shipments under contracts made before adoption of standards
The Secretary shall give reasonable notice through one or more trade papers of the effective date of standards of export established or designated by him under this chapter: Provided, That any apples may be certified and shipped for export in fulfillment of any contract made within six months prior to the date of such shipment if the terms of such contract were in accordance with the grades and regulations of the Secretary in effect at the time the contract was made.
(June 10, 1933, ch. 59, §2, 48 Stat. 123; Pub. L. 106–96, §1(c)(2), Nov. 12, 1999, 113 Stat. 1321.)
Editorial Notes
Amendments
1999—Pub. L. 106–96 struck out "or pears" after "any apples".
§583. Foreign standards; certification of compliance
Where the government of the country to which the shipment is to be made has standards or requirements as to condition of apples, the Secretary may in addition to inspection and certification for compliance with the standards established or designated hereunder inspect and certify for determination as to compliance with the standards or requirements of such foreign government and may provide for special certificates in such cases.
(June 10, 1933, ch. 59, §3, 48 Stat. 124; Pub. L. 106–96, §1(c)(2), Nov. 12, 1999, 113 Stat. 1321.)
Editorial Notes
Amendments
1999—Pub. L. 106–96 struck out "or pears" after "of apples".
§584. Exemptions
(a) In general
Apples in less than carload lots as defined by the Secretary may, in his discretion, be shipped to any foreign country without complying with the provisions of this chapter.
(b) Bulk containers
Apples may be shipped to Canada in bulk containers without complying with the provisions of this chapter.
(June 10, 1933, ch. 59, §4, 48 Stat. 124; Pub. L. 106–96, §1(c)(2), Nov. 12, 1999, 113 Stat. 1321; Pub. L. 113–79, title X, §10009(a), Feb. 7, 2014, 128 Stat. 949.)
Editorial Notes
Amendments
2014—Pub. L. 113–79 inserted section catchline, designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).
1999—Pub. L. 106–96 struck out "or pears" after "Apples".
Statutory Notes and Related Subsidiaries
Regulations
Pub. L. 113–79, title X, §10009(c), Feb. 7, 2014, 128 Stat. 949, provided that: "Not later than 60 days after the date of enactment of this Act [Feb. 7, 2014], the Secretary [of Agriculture] shall issue regulations to carry out the amendments made by this section [amending this section and section 589 of this title]."
§585. Fees for inspection and certification; certificates as prima facie evidence
For inspecting and certifying the grade, quality, and/or condition of apples, the Secretary shall cause to be collected a reasonable fee which shall as nearly as may be cover the cost of the service rendered: Provided, That when cooperative arrangements satisfactory to the Secretary, or his designated representative, for carrying out the purposes of this chapter cannot be made the fees collected hereunder in such cases shall be available until expended to defray the cost of the service rendered, and in such cases the limitations on the amounts expended for the purchase and maintenance of motor-propelled passenger-carrying vehicles shall not be applicable: Provided further, That certificates issued by the authorized agents of the United States Department of Agriculture shall be received in all courts of the United States as prima facie evidence of the truth of the statements therein contained.
(June 10, 1933, ch. 59, §5, 48 Stat. 124; Pub. L. 106–96, §1(c)(1), Nov. 12, 1999, 113 Stat. 1321.)
Editorial Notes
Amendments
1999—Pub. L. 106–96 struck out "and/or pears" after "of apples".
Executive Documents
Transfer of Functions
Functions of all officers, agencies, and employees of Department of Agriculture transferred, with certain exceptions, to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
§586. Refusal of certificates for violations of laws; penalties for violations
After opportunity for hearing the Secretary is authorized to refuse the issuance of certificates under this chapter for periods not exceeding ninety days to any person who ships or offers for shipment any apples in foreign commerce in violation of any of the provisions of this chapter. Any person or any common carrier or any transportation agency knowingly violating any of the provisions of this chapter shall be fined not less than $100 nor more than $10,000 by a court of competent jurisdiction.
(June 10, 1933, ch. 59, §6, 48 Stat. 124; Pub. L. 106–96, §1(c)(1), Nov. 12, 1999, 113 Stat. 1321.)
Editorial Notes
Amendments
1999—Pub. L. 106–96 struck out "and/or pears" after "any apples".
§587. Rules and regulations; cooperation with other agencies; compensation of officers and employees; effect on other laws
The Secretary may make such rules, regulations, and orders as may be necessary to carry out the provisions of this chapter, and may cooperate with any department or agency of the Government, any State, Territory, District, or possession, or department, agency, or political subdivision thereof, or any person, whether operating in one or more jurisdictions; and shall have the power to appoint, remove, and fix the compensation of such officers and employees not in conflict with existing law, and make such expenditures for rent outside the District of Columbia, printing, binding, telegrams, telephones, law books, books of reference, publications, furniture, stationery, office equipment, travel, and other supplies and expenses, including reporting services, as shall be necessary to the administration of this chapter in the District of Columbia and elsewhere, and as may be appropriated for by Congress. This chapter shall not abrogate nor nullify any other statute, whether State or Federal, dealing with the same subjects as this chapter; but it is intended that all such statutes shall remain in full force and effect except insofar as they are inconsistent herewith or repugnant hereto.
(June 10, 1933, ch. 59, §7, 48 Stat. 124.)
§588. Separability
If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the chapter and of the application of such provision to other persons and circumstances shall not be affected thereby.
(June 10, 1933, ch. 59, §8, 48 Stat. 124.)
§589. Definitions
When used in this chapter—
(1) The term "person" includes individuals, partnerships, corporations, and associations.
(2) The term "Secretary of Agriculture" means the Secretary of Agriculture of the United States.
(3) Except as provided herein, the term "foreign commerce" means commerce between any State, or the District of Columbia, and any place outside of the United States or its possessions.
(4) The term "apples" means fresh whole apples, whether or not the apples have been in storage.
(5) The term "bulk container" means a container that contains a quantity of apples weighing more than 100 pounds.
(June 10, 1933, ch. 59, §9, 48 Stat. 124; Pub. L. 106–96, §1(b), Nov. 12, 1999, 113 Stat. 1321; Pub. L. 113–79, title X, §10009(b), Feb. 7, 2014, 128 Stat. 949.)
Editorial Notes
Amendments
2014—Par. (5). Pub. L. 113–79 added par. (5).
1999—Par. (4). Pub. L. 106–96 added par. (4) and struck out former par. (4) which read as follows: "The term 'apples and/or pears' means fresh whole apples or pears, whether or not they have been in storage."
§590. Authorization of appropriations
There are authorized to be appropriated such sums as may be necessary for the administration of this chapter.
(June 10, 1933, ch. 59, §10, as added Pub. L. 87–725, §12, Oct. 1, 1962, 76 Stat. 676.)
§590a. Estimates of apple production
On and after October 18, 1986, no funds available to the Department of Agriculture shall be available to publish estimates of apple production for other than the commercial crop.
(Pub. L. 99–500, §101(a) [title I], Oct. 18, 1986, 100 Stat. 1783, 1783-3, and Pub. L. 99–591, §101(a) [title I], Oct. 30, 1986, 100 Stat. 3341, 3341-3.)
Editorial Notes
Codification
Section was formerly classified to section 411b of this title prior to editorial reclassification and renumbering as this section.
Section was enacted as part of the Department of the Interior and Related Agencies Appropriations Act, 1987, as enacted by Pub. L. 99–500 and Pub. L. 99–591, and not as part of the Export Apple Act which comprises this chapter.
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Prior Provisions
Provisions similar to those in this section were contained in the following prior appropriation acts:
Pub. L. 99–190, §101(a) [H.R. 3037, title I], Dec. 19, 1985, 99 Stat. 1185; Pub. L. 100–202, §106, Dec. 22, 1987, 101 Stat. 1329–433.
Pub. L. 97–370, title I, Dec. 18, 1982, 96 Stat. 1794.
Pub. L. 97–103, title I, Dec. 23, 1981, 95 Stat. 1473.
Pub. L. 96–528, title I, Dec. 15, 1980, 95 Stat. 3101.
Pub. L. 96–108, title I, Nov. 9, 1979, 93 Stat. 827.
Pub. L. 95–448, title I, Oct. 11, 1978, 92 Stat. 1079.
Pub. L. 95–97, title I, Aug. 12, 1977, 91 Stat. 815.
Pub. L. 94–351, title I, July 12, 1976, 90 Stat. 855.
Pub. L. 94–122, title I, Oct. 21, 1975, 89 Stat. 648.
Pub. L. 93–563, title I, Dec. 31, 1974, 88 Stat. 1826.
Pub. L. 93–135, title I, Oct. 24, 1973, 87 Stat. 474.
Pub. L. 92–399, title I, Aug. 22, 1972, 86 Stat. 596.
Pub. L. 92–73, title I, Aug. 10, 1971, 85 Stat. 187.
Pub. L. 91–566, title I, Dec. 22, 1970, 84 Stat. 1487.
Pub. L. 91–127, title I, Nov. 26, 1969, 83 Stat. 250.
Pub. L. 90–463, title I, Aug. 8, 1968, 82 Stat. 644.
Pub. L. 90–113, title I, Oct. 24, 1967, 81 Stat. 325.
Pub. L. 89–556, title I, Sept. 7, 1966, 80 Stat 694.
Pub. L. 89–316, title I, Nov. 2, 1965, 79 Stat. 1170.
Pub. L. 88–573, title I, Sept. 2, 1964, 78 Stat. 867.
Pub. L. 88–250, title I, Dec. 30, 1963, 77 Stat. 825.
Pub. L. 87–879, title I, Oct. 24, 1962, 76 Stat. 1208.
Pub. L. 87–112, title I, July 26, 1961, 75 Stat. 231.
Pub. L. 86–532, title I, June 29, 1960, 74 Stat. 237.
Pub. L. 86–80, title I, July 8, 1959, 73 Stat. 172.
Pub. L. 85–459, title I, June 13, 1958, 72 Stat. 193.
Pub. L. 85–118, title I, Aug. 2, 1957, 71 Stat. 331.
June 4, 1956, ch. 355, title I, 70 Stat. 234.
May 23, 1955, ch. 43, title I, 69 Stat. 57.
June 29, 1954, ch. 409, title I, 68 Stat. 313.
July 28, 1953, ch. 251, title I, 67 Stat. 206.
July 5, 1952, ch. 574, title I, 66 Stat. 336.
Aug. 31, 1951, ch. 374, title I, 65 Stat. 226.
Sept. 6, 1950, ch. 896, ch. VI, title I, 64 Stat. 658.
June 29, 1949, ch. 280, title I, 63 Stat. 328.
June 19, 1948, ch. 543, title I, 62 Stat. 512.
July 30, 1947, ch. 356, title I, 61 Stat. 527.
June 22, 1946, ch. 445, 60 Stat. 274.
May 5, 1945, ch. 109, 59 Stat. 140.
June 28, 1944, ch. 296, 58 Stat. 430.
July 12, 1943, ch. 215, 57 Stat. 398.
July 22, 1942, ch. 516, 56 Stat. 687.
July 1, 1941, ch. 267, 55 Stat. 430.
June 25, 1940, ch. 421, 54 Stat. 555.
June 30, 1939, ch. 253, title I, 53 Stat. 968.
CHAPTER 25A—EXPORT STANDARDS FOR GRAPES AND PLUMS
§591. Standards of export; establishment; shipping without certificate forbidden; hearings
It shall be unlawful for any person to ship or offer for shipment or for any carrier, or any steamship company, or any person to transport or receive for transportation to any foreign destination, except as provided in this chapter, any grapes or plums of any variety in packages which are not accompanied by a certificate issued under authority of the Secretary showing that such grapes or plums are of a Federal or State grade which meets the minimum of quality established for such variety and destination by the Secretary for shipment in export to such destination. The Secretary is authorized to prescribe, by regulations, the requirements, other than those of grades, which the fruit must meet before certificates are issued. The Secretary shall provide opportunity, by public hearing or otherwise for interested persons to examine and make recommendation with respect to any standard of export proposed to be established or designated, or regulation prescribed, by the Secretary for the purposes of this chapter.
(Pub. L. 86–687, §1, Sept. 2, 1960, 74 Stat. 734; Pub. L. 87–105, §1, July 26, 1961, 75 Stat. 220; Pub. L. 93–606, Jan. 2, 1975, 88 Stat. 1966.)
Editorial Notes
Amendments
1975—Pub. L. 93–606 inserted "and destination" and "to such destination" after "such variety" and "for shipment in export", respectively.
1961—Pub. L. 87–105 inserted "of any variety" and "for such variety" after "any grapes or plums" and "minimum of quality established", respectively.
Statutory Notes and Related Subsidiaries
Short Title
Pub. L. 86–687, as amended, which is classified to this chapter, is popularly known as the "Export Grape and Plum Act".
§592. Notice of establishment of standards; shipments under contracts made before adoption of standards
The Secretary shall give reasonable notice through one or more trade papers of the effective date of standards of export established or designated by him under this chapter: Provided, That any grapes or plums may be certified and shipped for export in fulfillment of any contract made within two months prior to the date of such shipment if the terms of such contract were in accordance with the grades and regulations of the Secretary in effect at the time the contract was made.
(Pub. L. 86–687, §2, Sept. 2, 1960, 74 Stat. 734.)
§593. Foreign standards; certification of compliance
Where the government of the country to which the shipment is to be made has standards or requirements as to condition of grapes and plums the Secretary may in addition to inspection and certification for compliance with the standards established or designated hereunder inspect and certify for determination as to compliance with the standards or requirements of such foreign government and may provide for special certificates in such cases.
(Pub. L. 86–687, §3, Sept. 2, 1960, 74 Stat. 734.)
§594. Exemption of minimum quantities
The Secretary may, by regulation, exempt from compliance with the provisions of this chapter (1) any variety or varieties of grapes and plums, and (2) the shipment of such minimum quantities of grapes and plums to any foreign country as he may prescribe.
(Pub. L. 86–687, §4, Sept. 2, 1960, 74 Stat. 734; Pub. L. 87–105, §2, July 26, 1961, 75 Stat. 220.)
Editorial Notes
Amendments
1961—Pub. L. 87–105 added cl. (1) and designated existing provisions as cl. (2).
§595. Fees for inspection and certification; certificates as prima facie evidence
For inspecting and certifying the grade, quality, or condition of grapes or plums the Secretary shall cause to be collected a reasonable fee which shall, as nearly as may be, cover the cost of the service rendered: Provided, That when cooperative arrangements satisfactory to the Secretary, or his designated representative, for carrying out the purposes of this chapter cannot be made the fees collected hereunder in such cases shall be available until expended to defray the cost of the service rendered, and in such cases the limitations on the amounts expended for the purchase and maintenance of motor-propelled passenger-carrying vehicles shall not be applicable: Provided further, That certificates issued by the authorized agents of the United States Department of Agriculture shall be received in all courts of the United States as prima facie evidence of the truth of the statements therein contained.
(Pub. L. 86–687, §5, Sept. 2, 1960, 74 Stat. 734.)
§596. Refusal of certificates for violations of law; penalties for violations
After opportunity for hearing the Secretary is authorized to refuse the issuance of certificates under this chapter for periods not exceeding ninety days to any person who ships or offers for shipment any grapes or plums in foreign commerce in violation of any of the provisions of this chapter. Any person or any common carrier or any transportation agency violating any of the provisions of this chapter shall be fined not less than $100 nor more than $10,000 by a court of competent jurisdiction.
(Pub. L. 86–687, §6, Sept. 2, 1960, 74 Stat. 734.)
§597. Rules and regulations; cooperation with other agencies; compensation of officers and employees; effect on other laws
The Secretary may make such rules, regulations, and orders, and require such reports, as may be necessary to carry out the provisions of this chapter, and may cooperate with any department or agency of the Government, any State, Territory, District, or possession, or department, agency, or political subdivision thereof, or any person, whether operating in one or more jurisdictions; and shall have the power to appoint, remove, and fix the compensation of such officers and employees not in conflict with existing law, and make such expenditures for rent outside the District of Columbia, printing, binding, telegrams, telephones, law books, books of reference, publications, furniture, stationery, office equipment, travel, and other supplies and expenses including reporting services, as shall be necessary to the administration of this chapter in the District of Columbia and elsewhere, and as may be appropriated for by Congress. This chapter shall not abrogate nor nullify any other statute, whether State or Federal, dealing with the same subjects as this chapter; but it is intended that all such statutes shall remain in full force and effect except insofar as they are inconsistent herewith or repugnant hereto.
(Pub. L. 86–687, §7, Sept. 2, 1960, 74 Stat. 735.)
§598. Separability
If any provision of the chapter or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the chapter and of the application of such provision to other persons and circumstances shall not be affected thereby.
(Pub. L. 86–687, §8, Sept. 2, 1960, 74 Stat. 735.)
§599. Definitions
When used in this chapter—
(1) The term "person" includes individuals, partnerships, corporations, and associations.
(2) The term "Secretary" means the Secretary of Agriculture.
(3) Except as provided herein, the term "foreign commerce" means commerce between any State, or the District of Columbia, and any place outside of the United States or its possessions.
(4) The term "grapes" means vinifera species table grapes, European type, whether or not they have been in storage.
(5) The term "plums" means both European and Japanese type, whether or not they have been in storage, but does not mean Italian-type prunes, nor damson-type plums.
(Pub. L. 86–687, §9, Sept. 2, 1960, 74 Stat. 735.)
CHAPTER 26—AGRICULTURAL ADJUSTMENT
SUBCHAPTER I—DECLARATION OF CONDITIONS AND POLICY
SUBCHAPTER II—COTTON OPTION CONTRACTS
SUBCHAPTER III—COMMODITY BENEFITS
SUBCHAPTER IV—REFUNDS
SUBCHAPTER I—DECLARATION OF CONDITIONS AND POLICY
§601. Declaration of conditions
It is declared that the disruption of the orderly exchange of commodities in interstate commerce impairs the purchasing power of farmers and destroys the value of agricultural assets which support the national credit structure and that these conditions affect transactions in agricultural commodities with a national public interest, and burden and obstruct the normal channels of interstate commerce.
(May 12, 1933, ch. 25, title I, §1, 48 Stat. 31; June 3, 1937, ch. 296, §§1, 2(a), 50 Stat. 246.)
Statutory Notes and Related Subsidiaries
Short Title of 2006 Amendment
Pub. L. 109–215, §1, Apr. 11, 2006, 120 Stat. 328, provided that: "This Act [amending section 608c of this title and enacting provisions set out as notes under section 608c of this title] may be cited as the 'Milk Regulatory Equity Act of 2005'."
Short Title
Act June 16, 1933, ch. 90, title I, §8(a), 48 Stat. 199, provided in part that title I of act May 12, 1933, which is classified to this chapter, may for all purposes be referred to as the "Agricultural Adjustment Act."
Validity of Certain Sections Affirmed
Act June 3, 1937, ch. 296, §§1, 2, 50 Stat. 246, provided as follows: "The following provisions of the Agricultural Adjustment Act, as amended, not having been intended for the control of the production of agricultural commodities, and having been intended to be effective irrespective of the validity of any other provision of that Act are expressly affirmed and validated, and are reenacted without change except as provided in section 2:
"(a) Section 1 (relating to the declaration of emergency [this section]):
"(b) Section 2 (relating to declaration of policy [section 602 of this title]):
"(c) Section 8a(5), (6), (7), (8), and (9) (relating to violations and enforcement [section 608a(5), (6), (7), (8), and (9) of this title]);
"(d) Section 8b (relating to marketing agreements [section 608b of this title]);
"(e) Section 8c (relating to orders [section 608c of this title]);
"(f) Section 8d (relating to books and records [section 608d of this title]);
"(g) Section 8e (relating to determination of base period [former section 608e of this title]);
"(h) Section 10(a), (b)(2), (c), (f), (g), (h), and (i) (miscellaneous provisions [section 610(a), (b)(2), (c), (f), (g), (h), and (i) of this title]);
"(i) Section 12(a) and (c) (relating to appropriation and expenses [section 612(a) and (c) of this title]);
"(j) Section 14 (relating to separability [section 614 of this title]);
"(k) Section 22 (relating to imports [section 624 of this title]).
"
Section 2 of act June 3, 1937, also added subsec. (j) to section 610.
Section 2 of act June 3, 1937, was amended by act Aug. 5, 1937, ch. 567, 50 Stat. 563, which amending act provided for amendments to subsecs. (2) and (6) of section 608c of this title.
§602. Declaration of policy; establishment of price basing period; marketing standards; orderly supply flow; circumstances for continued regulation
It is declared to be the policy of Congress—
(1) Through the exercise of the powers conferred upon the Secretary of Agriculture under this chapter, to establish and maintain such orderly marketing conditions for agricultural commodities in interstate commerce as will establish, as the prices to farmers, parity prices as defined by section 1301(a)(1) of this title.
(2) To protect the interest of the consumer by (a) approaching the level of prices which it is declared to be the policy of Congress to establish in subsection (1) of this section by gradual correction of the current level at as rapid a rate as the Secretary of Agriculture deems to be in the public interest and feasible in view of the current consumptive demand in domestic and foreign markets, and (b) authorizing no action under this chapter which has for its purpose the maintenance of prices to farmers above the level which it is declared to be the policy of Congress to establish in subsection (1) of this section.
(3) Through the exercise of the powers conferred upon the Secretary of Agriculture under this chapter, to establish and maintain such production research, marketing research, and development projects provided in section 608c(6)(I) of this title, such container and pack requirements provided in section 608c(6)(H) of this title 1 such minimum standards of quality and maturity and such grading and inspection requirements for agricultural commodities enumerated in section 608c (2) of this title, other than milk and its products, in interstate commerce as will effectuate such orderly marketing of such agricultural commodities as will be in the public interest.
(4) Through the exercise of the powers conferred upon the Secretary of Agriculture under this chapter, to establish and maintain such orderly marketing conditions for any agricultural commodity enumerated in section 608c(2) of this title as will provide, in the interests of producers and consumers, an orderly flow of the supply thereof to market throughout its normal marketing season to avoid unreasonable fluctuations in supplies and prices.
(5) Through the exercise of the power conferred upon the Secretary of Agriculture under this chapter, to continue for the remainder of any marketing season or marketing year, such regulation pursuant to any order as will tend to avoid a disruption of the orderly marketing of any commodity and be in the public interest, if the regulation of such commodity under such order has been initiated during such marketing season or marketing year on the basis of its need to effectuate the policy of this chapter.
(May 12, 1933, ch. 25, title I, §2, 48 Stat. 32; Aug. 24, 1935, ch. 641, §§1, 62, 49 Stat. 750, 782; June 3, 1937, ch. 296, §§1, 2(b), 50 Stat. 246, 247; Aug. 1, 1947, ch. 425, §1, 61 Stat. 707; July 3, 1948, ch. 827, title III, §302(a), 62 Stat. 1257; Aug. 28, 1954, ch. 1041, title IV, §401(a), 68 Stat. 906; Pub. L. 87–128, title I, §141(1), Aug. 8, 1961, 75 Stat. 303; Pub. L. 89–330, §1(a), Nov. 8, 1965, 79 Stat. 1270; Pub. L. 91–292, §1(1), June 25, 1970, 84 Stat. 333.)
Editorial Notes
Amendments
1970—Subsec. (3). Pub. L. 91–292 inserted authority to establish and maintain the production research, marketing research, and development projects provided in section 608c(6)(I) of this title.
1965—Subsec. (3). Pub. L. 89–330 inserted "such container and pack requirements provided in section 608c(6)(H) of this title".
1961—Subsec. (5). Pub. L. 87–128 added subsec. (5).
1954—Subsec. (4). Act Aug. 28, 1954, added subsec. (4).
1948—Subsec. (1). Act July 3, 1948, made definition of "parity" conform to definition stated in section 1301(a)(1) of this title.
1947—Subsec. (3). Act Aug. 1, 1947, added subsec. (3).
1937—Act June 3, 1937, inserted "orderly marketing conditions for agricultural commodities in interstate commerce as will establish" before "as the prices to farmers".
1935—Subsec. (1). Act Aug. 24, 1935, ch. 641, §1, amended first sentence and act Aug. 24, 1935, ch. 641, §62, amended second and third sentences.
Subsec. (2). Act Aug. 24, 1935, amended subsec. (2).
Statutory Notes and Related Subsidiaries
Effective Date of 1948 Amendment
Amendment by act July 3, 1948, effective Jan. 1, 1950, see section 303 of act July 3, 1948, set out as a note under section 1301 of this title.
Validity of Section Affirmed
Act June 3, 1937, ch. 296, §1, 50 Stat. 246, affirmed and validated, and reenacted without change the provisions of this section except for the amendment to subsec. (1) by section 2 of said act. See note set out under section 601 of this title.
1 So in original. Probably should be followed by a comma.
SUBCHAPTER II—COTTON OPTION CONTRACTS
§603. Government owned cotton; transfer to Secretary of Agriculture; powers of Secretary
The Farm Credit Administration and all departments and other agencies of the Government, not including the Federal intermediate credit banks are directed—
(a) To sell to the Secretary of Agriculture at such price as may be agreed upon, not in excess of the market price, all cotton now owned by them.
(b) To take such action and to make such settlements as are necessary in order to acquire full legal title to all cotton on which money has been loaned or advanced by any department or agency of the United States, including futures contracts for cotton or which is held as collateral for loans or advances and to make final settlement of such loans and advances as follows:
(1) In making such settlements with regard to cotton, including operations to which such cotton is related, such cotton shall be taken over by all such departments or agencies other than the Secretary of Agriculture at a price or sum equal to the amounts directly or indirectly loaned or advanced thereon and outstanding, including loans by the Government, department or agency and any loans senior thereto, plus any sums required to adjust advances to growers to 90 per centum of the value of their cotton at the date of its delivery in the first instance as collateral to the department or agency involved, such sums to be computed by subtracting the total amount already advanced to growers on account of pools of which such cotton was a part, from 90 per centum of the value of the cotton to be taken over as of the time of such delivery as collateral, plus unpaid accrued carrying charges and operating costs on such cotton, less, however, any existing assets of the borrower derived from net income, earnings, or profits arising from such cotton, and from operations to which such cotton is related; all as determined by the department or agency making the settlement.
(2) The Secretary of Agriculture shall make settlements with respect to cotton held as collateral for loans or advances made by him on such terms as in his judgment may be deemed advisable, and to carry out the provisions of this section, is authorized to indemnify or furnish bonds to warehousemen for lost warehouse receipts and to pay the premiums on such bonds.
When full legal title to the cotton referred to in this subsection has been acquired, it shall be sold to the Secretary of Agriculture for the purposes of this section, in the same manner as provided in subsection (a).
(c) The Secretary of Agriculture is authorized to purchase the cotton specified in subsections (a) and (b).
(May 12, 1933, ch. 25, title I, §3, 48 Stat. 32; 1933 Ex. Ord. No. 6084, Mar. 27, 1933.)
Statutory Notes and Related Subsidiaries
Farm Credit Administration
Establishment of Farm Credit Administration as independent agency, and other changes in status, functions, etc., see section 2241 et seq., of Title 12, Banks and Banking.
Executive Documents
Change of Name
Ex. Ord. No. 6084, set out as a note preceding section 2241 of Title 12, Banks and Banking, changed the name of "Federal Farm Board" to "Farm Credit Administration".
Transfer of Functions
Ex. Ord. No. 9322, Mar. 26, 1943, 8 F.R. 3807, as amended by Ex. Ord. No. 9334, Apr. 19, 1943, 8 F.R. 5423, removed Farm Credit Administration from Food Production Administration of Department of Agriculture and returned it to its former status as a separate agency of Department.
Ex. Ord. No. 9280, Dec. 5, 1942, 7 F.R. 10179, made Farm Credit Administration a part of Food Production Administration of Department of Agriculture.
Farm Credit Administration transferred to Department of Agriculture by 1939 Reorg. Plan No. 1, §401, 4 F.R. 2727, 53 Stat. 1423, set out in the Appendix to Title 5, Government Organization and Employees.
Exceptions From Transfer of Functions
Functions of Corporations of Department of Agriculture, boards of directors and officers of such corporations; Advisory Board of Commodity Credit Corporation; and Farm Credit Administration or any agency, officer or entity of, under, or subject to supervision of said Administration excepted from functions of officers, agencies, and employees transferred to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, effective June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
§604. Borrowing money; expenditures; authority of Secretary
(a) The Secretary of Agriculture shall have authority to borrow money upon all cotton in his possession or control and may, at his discretion, deposit as collateral for such loans the warehouse receipts for such cotton.
(b) The Secretary of the Treasury is authorized to advance, in his discretion, out of any money in the Treasury not otherwise appropriated, the sum of $100,000,000, to the Secretary of Agriculture, for paying off any debt or debts which may have been or may be incurred by the Secretary of Agriculture and discharging any lien or liens which may have arisen or may arise pursuant to sections 603, 604, and 607 of this title, for protecting title to any cotton which may have been or may be acquired by the Secretary of Agriculture under authority of said sections, and for paying any expenses (including, but not limited to, warehouse charges, insurance, salaries, interest, costs, and commissions) incident to carrying, handling, insuring, and marketing of said cotton and for the purposes described in subsection (e) of this section. This sum shall be available until the cotton acquired by the Secretary of Agriculture under authority of this chapter including cotton futures, shall have been finally marketed by any agency which may have been or may be established by the Secretary of Agriculture for the handling, carrying, insuring, or marketing of any cotton acquired by the Secretary of Agriculture.
(c) The funds authorized by subsection (b) of this section shall be made available to the Secretary of Agriculture from time to time upon his request and with the approval of the Secretary of the Treasury. Each such request shall be accompanied by a statement showing by weight and average grade and staple the quantity of cotton held by the Secretary of Agriculture and the approximate aggregate market value thereof.
(d) It is the purpose of subsections (b) and (c) to provide an alternative method to that provided by subsection (a), for enabling the Secretary of Agriculture to finance the acquisition, carrying, handling, insuring, and marketing of cotton acquired by him under authority of section 603 of this title. The Secretary of Agriculture may at his discretion make use of either or both of the methods provided in this section for obtaining funds for the purposes hereinabove enumerated.
(e) The Secretary of Agriculture is authorized to use in his discretion any funds obtained by him pursuant to the provisions of subsection (a) or (b) of this section for making advances to any agency which may have been or may be established by the Secretary of Agriculture for the handling, carrying, insuring, or marketing of any cotton acquired by the Secretary of Agriculture, to enable any such agency to perform, exercise, and discharge any of the duties, privileges, and functions which such agency may be authorized to perform, exercise, or discharge.
(f) The proceeds derived from the sale of cotton shall be held for the Secretary of Agriculture by the Treasurer of the United States in a special deposit account and shall be used by the Secretary of Agriculture to discharge the obligations incurred under authority of sections 603, 604, and 607 of this title. Whenever any cotton shall be marketed the net proceeds (after discharge of other obligations incurred with respect thereto) derived from the sale thereof shall be used, to the extent required, to reimburse the Treasury for such portion of the funds hereby provided for as shall have been used, which shall be covered into the Treasury as a miscellaneous receipt. If when all of the cotton acquired by the Secretary of Agriculture shall have been marketed and all of the obligations incurred with respect to such cotton shall have been discharged, and the Treasury reimbursed for any and all sums which may have been advanced pursuant to subsection (b), there shall remain any balance in the hands of the Secretary of Agriculture, such balance shall be covered into the Treasury as miscellaneous receipts.
The word "obligation" when used in this section shall include (without being limited to) administrative expenses, warehouse charges, insurance, salaries, interest, costs, commissions, and other expenses incident to handling, carrying, insuring, and marketing of said cotton.
(May 12, 1933, ch. 25, title I, §4, 48 Stat. 33; June 19, 1934, ch. 648, title II, §1, 48 Stat. 1058; Aug. 24, 1935, ch. 641, §§35, 36, 49 Stat. 775.)
Editorial Notes
Amendments
1935—Subsec. (b). Act Aug. 24, 1935, §35, struck out "to be available until March 1, 1936" after "$100,000,000" and inserted last sentence relating to availability of the sum of $100,000,000.
Subsec. (f). Act Aug. 24, 1935, §36, inserted last par. defining "obligation".
1934—Subsec. (a). Act June 19, 1934, inserted "may in his discretion" after "or control and".
Subsecs. (b) to (f). Act June 19, 1934, added subsecs. (b) to (f).
§605. Repealed. June 30, 1947, ch. 166, title II, §206(d), 61 Stat. 208
Section, acts May 12, 1933, ch. 25, title I, §5, 48 Stat. 33; June 19, 1934, ch. 648, title II, §1, 48 Stat. 1059, related to loans from Reconstruction Finance Corporation and warehouse receipts as collateral.
§606. Repealed. Aug. 24, 1935, ch. 641, §34, 49 Stat. 775
Section, act May 12, 1933, ch. 25, title I, §6, 48 Stat. 33, related to option contracts.
§607. Sale by Secretary; additional options; validation of assignments; publication of information
The Secretary shall sell cotton held or acquired by him pursuant to authority of this chapter at his discretion subject only to the conditions and limitations of this chapter: Provided, That the Secretary shall have authority to enter into option contracts with producers of cotton to sell to or for the producers such cotton held and/or acquired by him in such amounts and at such prices and upon such terms and conditions as he, the Secretary, may deem advisable, and such option contracts may be transferred or assigned in such manner as the Secretary of Agriculture may prescribe.
Notwithstanding any provisions contained in option contracts heretofore issued and/or any provision of law, assignments made prior to January 11, 1934, of option contracts exercised prior to January 18, 1934, shall be deemed valid upon determination by the Secretary that such assignment was an assignment in good faith of the full interest in such contract and for full value and is free from evidence of fraud or speculation by the assignee.
Notwithstanding any provision of existing law, the Secretary of Agriculture may, in the administration of this chapter, make public such information as he deems necessary in order to effectuate the purposes of this chapter.
(May 12, 1933, ch. 25, title I, §7, 48 Stat. 34; June 16, 1933, ch. 90, title II, §221, 48 Stat. 210; Aug. 24, 1935, ch. 641, §33, 49 Stat. 775.)
Editorial Notes
Amendments
1935—Act Aug. 24, 1935, among other changes, inserted provisions as to presumption of validity of assignments made prior to Jan. 11, 1934 of option contracts exercised prior to Jan. 18, 1934 if in good faith, for full value, and without fraud or speculation by the assignee.
1933—Act June 16, 1933, amended section generally.
SUBCHAPTER III—COMMODITY BENEFITS
§608. Powers of Secretary
(1) Investigations; proclamation of findings
Whenever the Secretary of Agriculture has reason to believe that:
(a) The current average farm price for any basic agricultural commodity is less than the fair exchange value thereof, or the average farm price of such commodity is likely to be less than the fair exchange value thereof for the period in which the production of such commodity during the current or next succeeding marketing year is normally marketed, and
(b) The conditions of and factors relating to the production, marketing, and consumption of such commodity are such that the exercise of any one or more of the powers conferred upon the Secretary under subsections (2) and (3) of this section would tend to effectuate the declared policy of this chapter,
he shall cause an immediate investigation to be made to determine such facts. If, upon the basis of such investigation, the Secretary finds the existence of such facts, he shall proclaim such determination and shall exercise such one or more of the powers conferred upon him under subsections (2) and (3) of this section as he finds, upon the basis of an investigation, administratively practicable and best calculated to effectuate the declared policy of this chapter.
(2) Agreements for adjustment of acreage or production and for rental or benefit payments
Subject to the provisions of subsection (1) of this section, the Secretary of Agriculture shall provide, through agreements with producers or by other voluntary methods,
(a) For such adjustment in the acreage or in the production for market, or both, of any basic agricultural commodity, as he finds, upon the basis of the investigation made pursuant to subsection (1) of this section, will tend to effectuate the declared policy of this chapter, and to make such adjustment program practicable to operate and administer, and
(b) For rental or benefit payments in connection with such agreements or methods in such amounts as he finds, upon the basis of such investigation, to be fair and reasonable and best calculated to effectuate the declared policy of this chapter, and to make such program practicable to operate and administer, to be paid out of any moneys available for such payments or, subject to the consent of the producer, to be made in quantities of one or more basic agricultural commodities acquired by the Secretary pursuant to this chapter.
(3) Payments by Secretary
Subject to the provisions of subsection (1) of this section, the Secretary of Agriculture shall make payments, out of any moneys available for such payments, in such amounts as he finds, upon the basis of the investigation made pursuant to subsection (1) of this section, to be fair and reasonable and best calculated to effectuate the declared policy of this chapter:
(a) To remove from the normal channels of trade and commerce quantities of any basic agricultural commodity or product thereof;
(b) To expand domestic or foreign markets for any basic agricultural commodity or product thereof;
(c) In connection with the production of that part of any basic agricultural commodity which is required for domestic consumption.
(4) Additional investigation; suspension of exercise of powers
Whenever, during a period during which any of the powers conferred in subsection (2) or (3) is being exercised, the Secretary of Agriculture has reason to believe that, with respect to any basic agricultural commodity:
(a) The current average farm price for such commodity is not less than the fair exchange value thereof, and the average farm price for such commodity is not likely to be less than the fair exchange value thereof for the period in which the production of such commodity during the current or next succeeding marketing year is normally marketed, or
(b) The conditions of and factors relating to the production, marketing, and consumption of such commodity are such that none of the powers conferred in subsections (2) and (3), and no combination of such powers, would, if exercised, tend to effectuate the declared policy of this chapter,
he shall cause an immediate investigation to be made to determine such facts. If, upon the basis of such investigation, the Secretary finds the existence of such facts, he shall proclaim such determination, and shall not exercise any of such powers with respect to such commodity after the end of the marketing year current at the time when such proclamation is made and prior to a new proclamation under subsection (1) of this section, except insofar as the exercise of such power is necessary to carry out obligations of the Secretary assumed, prior to the date of such proclamation made pursuant to this subsection, in connection with the exercise of any of the powers conferred upon him under subsections (2) or (3) of this section.
(5) Hearings; notice
In the course of any investigation required to be made under subsection (1) or (4) of this section, the Secretary of Agriculture shall hold one or more hearings, and give due notice and opportunity for interested parties to be heard.
(6) Commodity in which payment made
No payment under this chapter made in an agricultural commodity acquired by the Secretary in pursuance of this chapter shall be made in a commodity other than that in respect of which the payment is being made. For the purposes of this subsection, hogs and field corn may be considered as one commodity.
(7) Additional payments to producers of sugar beets or sugarcane
In the case of sugar beets or sugarcane, in the event that it shall be established to the satisfaction of the Secretary of Agriculture that returns to growers or producers, under the contracts for the 1933–1934 crop of sugar beets or sugarcane, entered into by and between the processors and producers and/or growers thereof, were reduced by reason of the payment of the processing tax, and/or the corresponding floor stocks tax, on sugar beets or sugarcane, in addition to the foregoing rental or benefit payments, the Secretary of Agriculture shall make such payments, representing in whole or in part such tax, as the Secretary deems fair and reasonable, to producers who agree, or have agreed, to participate in the program for reduction in the acreage or reduction in the production for market, or both, of sugar beets or sugarcane.
(8) Pledge by rice producer for production credit of right to rental or benefit payments
In the case of rice, the Secretary of Agriculture, in exercising the power conferred upon him by subsection (2) of this section to provide for rental or benefit payments, is directed to provide in any agreement entered into by him with any rice producer pursuant to such subsection, upon such terms and conditions as the Secretary determines will best effectuate the declared policy of this chapter, that the producer may pledge for production credit in whole or in part his right to any rental or benefit payments under the terms of such agreement and that such producer may designate therein a payee to receive such rental or benefit payments.
(9) Advances of payments on stored nonperishable commodity
Under regulations of the Secretary of Agriculture requiring adequate facilities for the storage of any nonperishable agricultural commodity on the farm, inspection and measurement of any such commodity so stored, and the locking and sealing thereof, and such other regulations as may be prescribed by the Secretary of Agriculture for the protection of such commodity and for the marketing thereof, a reasonable percentage of any benefit payment may be advanced on any such commodity so stored. In any such case such deduction may be made from the amount of the benefit payment as the Secretary of Agriculture determines will reasonably compensate for the cost of inspection and sealing but no deduction may be made for interest.
(May 12, 1933, ch. 25, title I, §8, 48 Stat. 34; Apr. 7, 1934, ch. 103, §7, 48 Stat. 528; May 9, 1934, ch. 263, §14, 48 Stat. 676; Mar. 18, 1935, ch. 32, §7, 49 Stat. 46; Aug. 24, 1935, ch. 641, §§2, 4–7, 49 Stat. 751, 753-762.)
Editorial Notes
Codification
Section as originally enacted consisted of subsections (1) to (5). Act Aug. 24, 1935, amended section by striking out or amending and redesignating the various subsections.
Amendments
1935—Subsec. (1) was, together with subsecs. (2) to (9), inserted in lieu of former (1) by section 2 of act Aug. 24, 1935, which also struck out former (1) as amended by acts May 9, 1934, and March 18, 1935.
Subsec. (2) was, together with subsecs. (1) and (3) to (9), inserted in lieu of former (1) by section 2 of act Aug. 24, 1935. Former subsec. (2), as amended by act Apr. 7, 1934, was designated section 8b of the Agricultural Adjustment Act, section 608b of this title, and amended by section 4 of said act Aug. 24, 1935.
Subsec. (3) was, together with subsecs. (1), (2), and (4) to (9), inserted in lieu of former (1) by section 2 of act Aug. 24, 1935. Former subsec. (3) was struck out by section 5 of said act Aug. 24, 1935, which also added section 8c to the Agricultural Adjustment Act, section 608c of this title.
Subsec. (4) was, together with subsecs. (1) to (3) and (5) to (9), inserted in lieu of former (1) by section 2 of act Aug. 24, 1935. Former subsec. (4) was struck out by section 6 of said act Aug. 24, 1935, which also added sections 8d and 8e to the Agricultural Adjustment Act, section 608d and former section 608e, respectively, of this title.
Subsec. (5) was, together with subsecs. (1) to (4) and (6) to (9), inserted in lieu of former (1) by section 2 of act Aug. 24, 1935. Former subsec. (5) was designated section 8f of the Agricultural Adjustment Act, section 608f of this title, and amended by section 7 of said act Aug. 24, 1935.
Subsecs. (6) to (9) were, together with subsecs. (1) to (5), inserted in lieu of former (1) by section 2 of act Aug. 24, 1935.
1934—Act May 9, 1934, amended subsec. (1) generally.
Act Apr. 7, 1934, amended subsec. (2) by striking out proviso.
Statutory Notes and Related Subsidiaries
Validity of Agreements and Licenses Preserved Under 1935 Act
Act Aug. 24, 1935, ch. 641, §38, 49 Stat. 776, provided that: "Nothing contained in this Act [see Tables for classification] shall (a), invalidate any marketing agreement or license in existence on the date of the enactment hereof [Aug. 24, 1935], or any provision thereof, or any act done pursuant thereto, either before or after the enactment of this Act, or (b) impair any remedy provided for on the date of the enactment thereof for the enforcement of any such marketing agreement or license, or (c) invalidate any agreement entered into pursuant to section 8(1) of the Agricultural Adjustment Act prior to the enactment of this Act, or subsequent to the enactment of this Act in connection with a program the initiation of which has been formally approved by the Secretary of Agriculture under such section 8(1) prior to the enactment of this Act, or any act done or agreed to be done or any payment made or agreed to be made in pursuance of any such agreement, either before or after the enactment of this Act, or any change in the terms and conditions of any such agreement, or any voluntary arrangements or further agreements which the Secretary finds necessary or desirable in order to complete or terminate such program pursuant to the declared policy of the Agricultural Adjustment Act [this chapter]; Provided, That the Secretary shall not prescribe, pursuant to any such agreement or voluntary arrangement, any adjustment in the acreage or in the production for market of any basic agricultural commodity to be made after July 1, 1937, except pursuant to the provisions of section 8 of the Agricultural Adjustment Act as amended by this Act."
§608–1. Omitted
Editorial Notes
Codification
Section, act July 2, 1940, ch. 521, §9, 54 Stat. 729, which related to adjustments between payee and third persons, was omitted as executed.
§608a. Enforcement of chapter
(1) to (4) Omitted
(5) Forfeitures
Any person exceeding any quota or allotment fixed for him under this chapter by the Secretary of Agriculture and any other person knowingly participating or aiding in the exceeding of such quota or allotment shall forfeit to the United States a sum equal to the value of such excess at the current market price for such commodity at the time of violation, which forfeiture shall be recoverable in a civil suit brought in the name of the United States.
(6) Jurisdiction of district courts
The several district courts of the United States are vested with jurisdiction specifically to enforce, and to prevent and restrain any person from violating any order, regulation, or agreement, heretofore or hereafter made or issued pursuant to this chapter, in any proceeding now pending or hereafter brought in said courts.
(7) Duties of United States attorneys; investigation of violations by Secretary; hearings
Upon the request of the Secretary of Agriculture, it shall be the duty of the several United States attorneys, in their respective districts, under the directions of the Attorney General, to institute proceedings to enforce the remedies and to collect the forfeitures provided for in, or pursuant to this chapter. Whenever the Secretary, or such officer or employee of the Department of Agriculture as he may designate for the purpose, has reason to believe that any handler has violated, or is violating, the provisions of any order or amendment thereto issued pursuant to this chapter, the Secretary shall have power to institute an investigation and, after due notice to such handler, to conduct a hearing in order to determine the facts for the purpose of referring the matter to the Attorney General for appropriate action.
(8) Cumulative remedies
The remedies provided for in this section shall be in addition to, and not exclusive of, any of the remedies or penalties provided for elsewhere in this chapter or now or hereafter existing at law or in equity.
(9) "Person" defined
The term "person" as used in this chapter includes an individual, partnership, corporation, association, and any other business unit.
(May 12, 1933, ch. 25, title I, §8a, as added May 9, 1934, ch. 263, §4, 48 Stat. 672; amended Aug. 24, 1935, ch. 641, §§8–10, 49 Stat. 762; June 3, 1937, ch. 296, §§1, 2(c), 50 Stat. 246, 247; June 25, 1948, ch. 646, §1, 62 Stat. 909; Pub. L. 87–128, title I, §141(2), Aug. 8, 1961, 75 Stat. 304.)
Editorial Notes
Codification
Provisions of subsecs. (1) to (4), relating to establishment, regulation and determination of sugar quotas, agreements limiting or regulating child labor, wages, and adjustment of disputes in the sugar industry, and prescribing penalties for violations thereof, were omitted since they ceased to apply on Sept. 1, 1937, in accordance with the provisions of section 510 of the Sugar Act of 1937, act Sept. 1, 1937, ch. 898, 50 Stat. 916. Section 510 of act Sept. 1, 1937, provided in part that: "The provisions of the Agricultural Adjustment Act, as amended [this chapter], shall cease to apply to sugar upon the enactment of this Act [Sept. 1, 1937]". Provisions similar to former subsecs. (1) to (4) were contained in the Sugar Act of 1948, section 1100 et seq. of this title, which expired on Dec. 31, 1974.
Amendments
1961—Subsec. (5). Pub. L. 87–128 struck out "willfully" after "Any person" and substituted provision for forfeiture of a sum equal to the value of the excess at the current market price for the commodity at the time of violation for provision for forfeiture of a sum equal to three times the current market value of the excess.
1937—Subsec. (6). Act June 3, 1937, §2(c), struck out "the provisions of this section, or of".
1935—Subsec. (1). Act Aug. 24, 1935, §8, substituted "persons engaged in handling" for "handlers" wherever appearing; struck out "or in competition with," in par. (B); inserted "directly" before "to burden" in par. (B); and struck out "in any way" in par. (B).
Subsec. (6). Act Aug. 24, 1935, §9, inserted "or" after "regulation," and struck out "or license".
Subsec. (7). Act Aug. 24, 1935, §10, inserted last sentence.
Statutory Notes and Related Subsidiaries
Change of Name
Act June 25, 1948, eff. Sept. 1, 1948, substituted "United States attorneys" for "district attorneys" in subsec. (7). See section 541 of Title 28, Judiciary and Judicial Procedure, and Historical and Revision Notes thereunder.
Validity of Section Affirmed
Act June 3, 1937, affirmed and validated, and reenacted without change the provisions of subsections (5), (6), (7), (8), and (9) of this section, except for the amendment to subsection (6) by section 2 of the act. See note set out under section 601 of this title.
Executive Documents
Admission of Hawaii as State
Admission of Hawaii into the Union was accomplished Aug. 21, 1959, on issuance of Proc. No. 3309, Aug. 21, 1959, 24 F.R. 6868, 73 Stat. c74, as required by sections 1 and 7(c) of Pub. L. 86–3, Mar. 18, 1959, 73 Stat. 4, set out as notes preceding 491 of Title 48, Territories and Insular Possessions.
§608a–1. Repealed. Sept. 1, 1937, ch. 898, title V, §510, 50 Stat. 916
Section, act June 19, 1936, ch. 612, §2, 49 Stat. 1539, related to additional provisions regulating the sugar quotas.
§608b. Marketing agreements; exemption from anti-trust laws; inspection requirements for handlers not subject to agreements
(a) In order to effectuate the declared policy of this chapter, the Secretary of Agriculture shall have the power, after due notice and opportunity for hearing, to enter into marketing agreements with processors, producers, associations of producers, and others engaged in the handling of any agricultural commodity or product thereof, only with respect to such handling as is in the current of interstate or foreign commerce or which directly burdens, obstructs, or affects, interstate or foreign commerce in such commodity or product thereof. The making of any such agreement shall not be held to be in violation of any of the antitrust laws of the United States, and any such agreement shall be deemed to be lawful: Provided, That no such agreement shall remain in force after the termination of this chapter.
(b)(1) If an agreement with the Secretary is in effect with respect to peanuts pursuant to this section—
(A) all peanuts handled by persons who have not entered into such an agreement with the Secretary shall be subject to inspection to the same extent and manner as is required by such agreement;
(B) no such peanuts shall be sold or otherwise disposed of for human consumption if such peanuts fail to meet the quality requirements of such agreement; and
(C) any assessment (except with respect to any assessment for the indemnification of losses on rejected peanuts) imposed under the agreement shall—
(i) apply to peanut handlers (as defined by the Secretary) who have not entered into such an agreement with the Secretary in addition to those handlers who have entered into the agreement; and
(ii) be paid to the Secretary.
(2) Violation of this subsection by a person who has not entered into such an agreement shall result in the assessment by the Secretary of a penalty equal to 140 percent of the support price for quota peanuts multiplied by the quantity of peanuts sold or disposed of in violation of subsection (b)(1)(B), as determined under section 1445c–3 1 of this title, for the marketing year for the crop with respect to which such violation occurs.
(May 12, 1933, ch. 25, title I, §8b, formerly §8(2), 48 Stat. 34; Apr. 7, 1934, ch. 103, §7, 48 Stat. 528; renumbered and amended Aug. 24, 1935, ch. 641, §4, 49 Stat. 753; June 3, 1937, ch. 296, §1, 50 Stat. 246; June 30, 1947, ch. 166, title II, §206(d), 61 Stat. 208; Pub. L. 101–220, §4, Dec. 12, 1989, 103 Stat. 1878; Pub. L. 102–237, title I, §115(1), Dec. 13, 1991, 105 Stat. 1840; Pub. L. 103–66, title I, §1109(b), Aug. 10, 1993, 107 Stat. 326.)
Editorial Notes
References in Text
Section 1445c–3 of this title, referred to in subsec. (b)(2), was repealed by Pub. L. 104–127, title I, §171(b)(2)(E), Apr. 4, 1996, 110 Stat. 938.
Codification
The provisions appearing in subsec. (a) of this section except the first sentence, were originally enacted as part of section 8(2) of act May 12, 1933, and formerly appeared as section 608(2) of this title.
Amendments
1993—Subsec. (b)(1)(C). Pub. L. 103–66 added subpar. (C).
1991—Subsec. (b)(2). Pub. L. 102–237 made technical amendment to reference to section 1445c–3 of this title involving corresponding provisions of original Act.
1989—Pub. L. 101–220 designated existing provisions as subsec. (a) and added subsec. (b).
1947—Act June 30, 1947, repealed provisions providing for loans from Reconstruction Finance Corporation.
1935—Act Aug. 24, 1935, designated subsection 2 of section 8 of act May 12, 1933, as section 8b and amended first sentence generally.
1934—Act Apr. 7, 1934, empowered Secretary of Agriculture to enter into marketing agreements with individual producers.
Statutory Notes and Related Subsidiaries
Effective Date of 1989 Amendment
Pub. L. 101–220, §4(c), Dec. 12, 1989, 103 Stat. 1878, provided that: "The amendment made by this section [amending this section] shall be effective with respect to the 1990 and subsequent crops of peanuts."
Validity of Section Affirmed
Act June 3, 1937, affirmed and validated, and reenacted without change the provisions of this section. See note set out under section 601 of this title.
1 See References in Text note below.
§608c. Orders
(1) Issuance by Secretary
The Secretary of Agriculture shall, subject to the provisions of this section, issue, and from time to time amend, orders applicable to processors, associations of producers, and others engaged in the handling of any agricultural commodity or product thereof specified in subsection (2) of this section. Such persons are referred to in this chapter as "handlers". Such orders shall regulate, in the manner hereinafter in this section provided, only such handling of such agricultural commodity, or product thereof, as is in the current of interstate or foreign commerce, or which directly burdens, obstructs, or affects, interstate or foreign commerce in such commodity or product thereof. In carrying out this section, the Secretary shall complete all informal rulemaking actions necessary to respond to recommendations submitted by administrative committees for such orders as expeditiously as possible, but not more than 45 days (to the extent practicable) after submission of the committee recommendations. The Secretary is authorized to implement a producer allotment program and a handler withholding program under the cranberry marketing order in the same crop year through informal rulemaking based on a recommendation and supporting economic analysis submitted by the Cranberry Marketing Committee. Such recommendation and analysis shall be submitted by the Committee no later than March 1 of each year. The Secretary shall establish time frames for each office and agency within the Department of Agriculture to consider the committee recommendations.
(2) Commodities to which applicable
Orders issued pursuant to this section shall be applicable only to (A) the following agricultural commodities and the products thereof (except canned or frozen pears, grapefruit, cherries, apples, or cranberries, the products of naval stores, and the products of honeybees), or to any regional, or market classification of any such commodity or product: Milk, fruits (including filberts, almonds, pecans and walnuts but not including apples, other than apples produced in the States of Washington, Oregon, Idaho, New York, Michigan, Maryland, New Jersey, Indiana, California, Maine, Vermont, New Hampshire, Rhode Island, Massachusetts, Connecticut, Colorado, Utah, New Mexico, Illinois, and Ohio, and not including fruits for canning or freezing other than pears, olives, grapefruit, cherries, caneberries (including raspberries, blackberries, and loganberries), cranberries, and apples produced in the States named above except Washington, Oregon, and Idaho), tobacco, vegetables (not including vegetables, other than asparagus, for canning or freezing and not including potatoes for canning, freezing, or other processing), hops, honeybees and naval stores as included in the Naval Stores Act [7 U.S.C. 91 et seq.] and standards established thereunder (including refined or partially refined oleoresin): Provided, That no order issued pursuant to this section shall be effective as to any grapefruit for canning or freezing unless the Secretary of Agriculture determines, in addition to other findings and determinations required by this chapter, that the issuance of such order is approved or favored by the processors who, during a representative period determined by the Secretary, have been engaged in canning or freezing such commodity for market and have canned or frozen for market more than 50 per centum of the total volume of such commodity canned or frozen for market during such representative period; and (B) any agricultural commodity (except honey, cotton, rice, wheat, corn, grain sorghums, oats, barley, rye, sugarcane, sugarbeets, wool, mohair, livestock, soybeans, cottonseed, flaxseed, poultry (but not excepting turkeys and not excepting poultry which produce commercial eggs), fruits and vegetables for canning or freezing, including potatoes for canning, freezing, or other processing 1 and apples), or any regional or market classification thereof, not subject to orders under (A) of this subdivision, but not the products (including canned or frozen commodities or products) thereof. No order issued pursuant to this section shall be effective as to cherries, apples, or cranberries for canning or freezing unless the Secretary of Agriculture determines, in addition to other required findings and determinations, that the issuance of such order is approved or favored by processors who, during a representative period determined by the Secretary, have engaged in canning or freezing such commodity for market and have frozen or canned more than 50 per centum of the total volume of the commodity to be regulated which was canned or frozen within the production area, or marketed within the marketing area, defined in such order, during such representative period. No order issued pursuant to this section shall be applicable to peanuts produced in more than one of the following production areas: the Virginia-Carolina production area, the Southeast production area, and the Southwest production area. If the Secretary determines that the declared policy of this chapter will be better achieved thereby (i) the commodities of the same general class and used wholly or in part for the same purposes may be combined and treated as a single commodity and (ii) the portion of an agricultural commodity devoted to or marketed for a particular use or combination of uses, may be treated as a separate agricultural commodity. All agricultural commodities and products covered hereby shall be deemed specified herein for the purposes of subsections (6) and (7).
(3) Notice and hearing
Whenever the Secretary of Agriculture has reason to believe that the issuance of an order will tend to effectuate the declared policy of this chapter with respect to any commodity or product thereof specified in subsection (2) of this section, he shall give due notice of and an opportunity for a hearing upon a proposed order.
(4) Finding and issuance of order
After such notice and opportunity for hearing, the Secretary of Agriculture shall issue an order if he finds, and sets forth in such order, upon the evidence introduced at such hearing (in addition to such other findings as may be specifically required by this section) that the issuance of such order and all of the terms and conditions thereof will tend to effectuate the declared policy of this chapter with respect to such commodity.
(5) Terms—Milk and its products
In the case of milk and its products, orders issued pursuant to this section shall contain one or more of the following terms and conditions, and (except as provided in subsection (7)) no others:
(A) Classifying milk in accordance with the form in which or the purpose for which it is used, and fixing, or providing a method for fixing, minimum prices for each such use classification which all handlers shall pay, and the time when payments shall be made, for milk purchased from producers or associations of producers. Such prices shall be uniform as to all handlers, subject only to adjustments for (1) volume, market, and production differentials customarily applied by the handlers subject to such order, (2) the grade or quality of the milk purchased, and (3) the locations at which delivery of such milk, or any use classification thereof, is made to such handlers. Throughout the 2-year period beginning on the effective date of this sentence (and subsequent to such 2-year period unless modified by amendment to the order involved), for purposes of determining prices for milk of the highest use classification, the Class I skim milk price per hundredweight specified in section 1000.50(b) of title 7, Code of Federal Regulations (or successor regulations), shall be the sum of the adjusted Class I differential specified in section 1000.52 of such title 7 (or successor regulations), plus the adjustment to Class I prices specified in sections 1005.51(b), 1006.51(b), and 1007.51(b) of such title 7 (or successor regulations), plus the simple average of the advanced pricing factors computed in sections 1000.50(q)(1) and 1000.50(q)(2) of such title 7 (or successor regulations), plus $0.74.
(B) Providing:
(i) for the payment to all producers and associations of producers delivering milk to the same handler of uniform prices for all milk delivered by them: Provided, That, except in the case of orders covering milk products only, such provision is approved or favored by at least three-fourths of the producers who, during a representative period determined by the Secretary of Agriculture, have been engaged in the production for market of milk covered in such order or by producers who, during such representative period, have produced at least three-fourths of the volume of such milk produced for market during such period; the approval required hereunder shall be separate and apart from any other approval or disapproval provided for by this section; or
(ii) for the payment to all producers and associations of producers delivering milk to all handlers of uniform prices for all milk so delivered, irrespective of the uses made of such milk by the individual handler to whom it is delivered;
subject, in either case, only to adjustments for (a) volume, market, and production differentials customarily applied by the handlers subject to such order, (b) the grade or quality of the milk delivered, (c) the locations at which delivery of such milk is made, and (d) a further adjustment, equitably to apportion the total value of the milk purchased by any handler, or by all handlers, among producers and associations of producers, on the basis of their marketings of milk during a representative period of time.,2 [(e) omitted] and (f) a further adjustment, equitably to apportion the total value of milk purchased by any handler or by all handlers among producers on the basis of the milk components contained in their marketings of milk 3
(C) In order to accomplish the purposes set forth in paragraphs (A) and (B) of this subsection, providing a method for making adjustments in payments, as among handlers (including producers who are also handlers), to the end that the total sums paid by each handler shall equal the value of the milk purchased by him at the prices fixed in accordance with paragraph (A) of this subsection.
(D) Providing that, in the case of all milk purchased by handlers from any producer who did not regularly sell milk during a period of 30 days next preceding the effective date of such order for consumption in the area covered thereby, payments to such producer, for the period beginning with the first regular delivery by such producer and continuing until the end of two full calendar months following the first day of the next succeeding calendar month, shall be made at the price for the lowest use classification specified in such order, subject to the adjustments specified in paragraph (B) of this subsection.
(E) Providing (i) except as to producers for whom such services are being rendered by a cooperative marketing association, qualified as provided in paragraph (F) of this subsection, for market information to producers and for the verification of weights, sampling, and testing of milk purchased from producers, and for making appropriate deductions therefor from payments to producers, and (ii) for assurance of, and security for, the payment by handlers for milk purchased.
(F) Nothing contained in this subsection is intended or shall be construed to prevent a cooperative marketing association qualified under the provisions of sections 291 and 292 of this title, engaged in making collective sales or marketing of milk or its products for the producers thereof, from blending the net proceeds of all of its sales in all markets in all use classifications, and making distribution thereof to its producers in accordance with the contract between the association and its producers: Provided, That it shall not sell milk or its products to any handler for use or consumption in any market at prices less than the prices fixed pursuant to paragraph (A) of this subsection for such milk.
(G) No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, in the case of the products of milk, the marketing in that area of any milk or product thereof produced in any production area in the United States.
(H) Omitted
(I) Establishing or providing for the establishment of research and development projects, and advertising (excluding brand advertising), sales promotion, educational, and other programs designed to improve or promote the domestic marketing and consumption of milk and its products, to be financed by producers in a manner and at a rate specified in the order, on all producer milk under the order. Producer contributions under this subparagraph 4 may be deducted from funds due producers in computing total pool value or otherwise computing total funds due producers and such deductions shall be in addition to the adjustments authorized by paragraph (B) of this subsection. Provision may be made in the order to exempt, or allow suitable adjustments or credits in connection with, milk on which a mandatory checkoff for advertising or marketing research is required under the authority of any State law. Such funds shall be paid to an agency organized by milk producers and producers' cooperative associations in such form and with such methods of operation as shall be specified in the order. Such agency may expend such funds for any of the purposes authorized by this subparagraph 4 and may designate, employ, and allocate funds to persons and organizations engaged in such programs which meet the standards and qualifications specified in the order. All funds collected under this subparagraph 4 shall be separately accounted for and shall be used only for the purposes for which they were collected. Programs authorized by this subparagraph 4 may be either local or national in scope, or both, as provided in the order, but shall not be international. Order provisions under this subparagraph 4 shall not become effective in any marketing order unless such provisions are approved by producers separately from other order provisions, in the same manner provided for the approval of marketing orders, and may be terminated separately whenever the Secretary makes a determination with respect to such provisions as is provided for the termination of an order in subsection (16)(B). Disapproval or termination of such order provisions shall not be considered disapproval of the order or of other terms of the order. Notwithstanding any other provision of this chapter, any producer against whose marketings any assessment is withheld or collected under the authority of this subparagraph,4 and who is not in favor of supporting the research and promotion programs, as provided for herein, shall have the right to demand and receive a refund of such assessment pursuant to the terms and conditions specified in the order.
(J) Providing for the payment, from the total sums payable by all handlers for milk (irrespective of the use classification of such milk) and before computing uniform prices under paragraph (A) and making adjustments in payments under paragraph (C), to handlers that are cooperative marketing associations described in paragraph (F) and to handlers with respect to which adjustments in payments are made under paragraph (C), for services of marketwide benefit, including but not limited to—
(i) providing facilities to furnish additional supplies of milk needed by handlers and to handle and dispose of milk supplies in excess of quantities needed by handlers;
(ii) handling on specific days quantities of milk that exceed the quantities needed by handlers; and
(iii) transporting milk from one location to another for the purpose of fulfilling requirements for milk of a higher use classification or for providing a market outlet for milk of any use classification.
(K)(i) Notwithstanding any other provision of law, milk produced by dairies—
(I) owned or controlled by foreign persons; and
(II) financed by or with the use of bonds the interest on which is exempt from Federal income tax under section 103 of title 26;
shall be treated as other-source milk, and shall be allocated as milk received from producer-handlers for the purposes of classifying producer milk, under the milk marketing program established under this chapter. For the purposes of this subparagraph,4 the term "foreign person" has the meaning given such term under section 3508(3) of this title.
(ii) The Secretary of Agriculture shall prescribe regulations to carry out this subparagraph.4
(iii) This subparagraph 4 shall not apply with respect to any dairy that began operation before May 6, 1986.
(L) Providing that adjustments in payments by handlers under paragraph (A) need not be the same as adjustments to producers under paragraph (B) with regard to adjustments authorized by subparagraphs (2) and (3) of paragraph (A) and clauses (b), (c), and (d) of paragraph (B)(ii).
(M)
(i)
(ii)
(I) operates a plant that is located within the boundaries of a Federal order milk marketing area (as those boundaries are in effect as of April 11, 2006);
(II) has packaged fluid milk product route dispositions, or sales of packaged fluid milk products to other plants, in a milk marketing area located in a State that requires handlers to pay minimum prices for raw milk purchases; and
(III) is not otherwise obligated by a Federal milk marketing order, or a regulated milk pricing plan operated by a State, to pay minimum class prices for the raw milk that is used for such dispositions or sales.
(iii) Obligation to pay minimum class prices.—For purposes of clause (ii)(III), the Secretary may not consider a handler of Class I milk products to be obligated by a Federal milk marketing order to pay minimum class prices for raw milk unless the handler operates the plant as a fully regulated fluid milk distributing plant under a Federal milk marketing order.
(iv) Certain handlers exempted.—Clause (i) does not apply to—
(I) a handler (otherwise described in clause (ii)) that operates a nonpool plant (as defined in section 1000.8(e) of title 7, Code of Federal Regulations, as in effect on April 11, 2006);
(II) a producer-handler (otherwise described in clause (ii)) for any month during which the producer-handler has route dispositions, and sales to other plants, of packaged fluid milk products equaling less than 3,000,000 pounds of milk; or
(III) a handler (otherwise described in clause (ii)) for any month during which—
(aa) less than 25 percent of the total quantity of fluid milk products physically received at the plant of the handler (excluding concentrated milk received from another plant by agreement for other than Class I use) is disposed of as route disposition or is transferred in the form of packaged fluid milk products to other plants; or
(bb) less than 25 percent in aggregate of the route disposition or transfers are in a marketing area or areas located in one or more States that require handlers to pay minimum prices for raw milk purchases.
(N)
(O)
(6) Terms—Other commodities
In the case of the agricultural commodities and the products thereof, other than milk and its products, specified in subsection (2) orders issued pursuant to this section shall contain one or more of the following terms and conditions, and (except as provided in subsection (7)), no others:
(A) Limiting, or providing methods for the limitation of, the total quantity of any such commodity or product, or of any grade, size, or quality thereof, produced during any specified period or periods, which may be marketed in or transported to any or all markets in the current of interstate or foreign commerce or so as directly to burden, obstruct, or affect interstate or foreign commerce in such commodity or product thereof, during any specified period or periods by all handlers thereof.
(B) Allotting, or providing methods for allotting, the amount of such commodity or product, or any grade, size, or quality thereof, which each handler may purchase from or handle on behalf of any and all producers thereof, during any specified period or periods, under a uniform rule based upon the amounts sold by such producers in such prior period as the Secretary determines to be representative, or upon the current quantities available for sale by such producers, or both, to the end that the total quantity thereof to be purchased, or handled during any specified period or periods shall be apportioned equitably among producers.
(C) Allotting, or providing methods for allotting, the amount of any such commodity or product, or any grade, size, or quality thereof, which each handler may market in or transport to any or all markets in the current of interstate or foreign commerce or so as directly to burden, obstruct, or affect interstate or foreign commerce in such commodity or product thereof, under a uniform rule based upon the amounts which each such handler has available for current shipment, or upon the amounts shipped by each such handler in such prior period as the Secretary determines to be representative, or both, to the end that the total quantity of such commodity or product, or any grade, size, or quality thereof, to be marketed in or transported to any or all markets in the current of interstate or foreign commerce or so as directly to burden, obstruct, or affect interstate or foreign commerce in such commodity or product thereof, during any specified period or periods shall be equitably apportioned among all of the handlers thereof.
(D) Determining, or providing methods for determining, the existence and extent of the surplus of any such commodity or product, or of any grade, size, or quality thereof, and providing for the control and disposition of such surplus, and for equalizing the burden of such surplus elimination or control among the producers and handlers thereof.
(E) Establishing or providing for the establishment of reserve pools of any such commodity or product, or of any grade, size, or quality thereof, and providing for the equitable distribution of the net return derived from the sale thereof among the persons beneficially interested therein.
(F) Requiring or providing for the requirement of inspection of any such commodity or product produced during specified periods and marketed by handlers.
(G) In the case of hops and their products in addition to, or in lieu of, the foregoing terms and conditions, orders may contain one or more of the following:
(i) Limiting, or providing methods for the limitation of, the total quantity thereof, or of any grade, type, or variety thereof, produced during any specified period or periods, which all handlers may handle in the current of or so as directly to burden, obstruct, or affect interstate or foreign commerce in hops or any product thereof.
(ii) Apportioning, or providing methods for apportioning, the total quantity of hops of the production of the then current calendar year permitted to be handled equitably among all producers in the production area to which the order applies upon the basis of one or more or a combination of the following: The total quantity of hops available or estimated will become available for market by each producer from his production during such period; the normal production of the acreage of hops operated by each producer during such period upon the basis of the number of acres of hops in production, and the average yield of that acreage during such period as the Secretary determines to be representative, with adjustments determined by the Secretary to be proper for age of plantings or abnormal conditions affecting yield; such normal production or historical record of any acreage for which data as to yield of hops are not available or which had no yield during such period shall be determined by the Secretary on the basis of the yields of other acreage of hops of similar characteristics as to productivity, subject to adjustment as just provided for.
(iii) Allotting, or providing methods for allotting, the quantity of hops which any handler may handle so that the allotment fixed for that handler shall be limited to the quantity of hops apportioned under preceding section 5 (ii) to each respective producer of hops; such allotment shall constitute an allotment fixed for that handler within the meaning of subsection (5) of section 608a of this title.
(H) providing 6 a method for fixing the size, capacity, weight, dimensions, or pack of the container, or containers, which may be used in the packaging, transportation, sale, shipment, or handling of any fresh or dried fruits, vegetables, or tree nuts: Provided, however, That no action taken hereunder shall conflict with the Standard Containers Act of 1916 (15 U.S.C. 251–256) and the Standard Containers Act of 1928 (15 U.S.C. 257–257i); 7
(I) establishing 6 or providing for the establishment of production research, marketing research and development projects designed to assist, improve, or promote the marketing, distribution, and consumption or efficient production of any such commodity or product, the expense of such projects to be paid from funds collected pursuant to the marketing order: Provided, That with respect to orders applicable to almonds, filberts (otherwise known as hazelnuts), California-grown peaches, cherries, papayas, carrots, citrus fruits, onions, Tokay grapes, pears, dates, plums, nectarines, celery, sweet corn, limes, olives, pecans, eggs, avocados, apples, raisins, walnuts, tomatoes, caneberries (including raspberries, blackberries, and loganberries), Florida grown 8 strawberries, or cranberries, such projects may provide for any form of marketing promotion including paid advertising and with respect to almonds, filberts (otherwise known as hazelnuts), raisins, walnuts, olives, Florida Indian River grapefruit, and cranberries may provide for crediting the pro rata expense assessment obligations of a handler with all or any portion of his direct expenditures for such marketing promotion including paid advertising as may be authorized by the order and when the handling of any commodity for canning or freezing is regulated, then any such projects may also deal with the commodity or its products in canned or frozen form: Provided further, That the inclusion in a Federal marketing order of provisions for research and marketing promotion, including paid advertising, shall not be deemed to preclude, preempt or supersede any such provisions in any State program covering the same commodity.
(J) In the case of pears for canning or freezing, any order for a production area encompassing territory within two or more States or portions thereof shall provide that the grade, size, quality, maturity, and inspection regulation under the order applicable to pears grown within any such State or portion thereof may be recommended to the Secretary by the agency established to administer the order only if a majority of the representatives from that State on such agency concur in the recommendation each year.
(7) Terms common to all orders
In the case of the agricultural commodities and the products thereof specified in subsection (2) orders shall contain one or more of the following terms and conditions:
(A) Prohibiting unfair methods of competition and unfair trade practices in the handling thereof.
(B) Providing that (except for milk and cream to be sold for consumption in fluid form) such commodity or product thereof, or any grade, size, or quality thereof shall be sold by the handlers thereof only at prices filed by such handlers in the manner provided in such order.
(C) Providing for the selection by the Secretary of Agriculture, or a method for the selection, of an agency or agencies and defining their powers and duties, which shall include only the powers:
(i) To administer such order in accordance with its terms and provisions;
(ii) To make rules and regulations to effectuate the terms and provisions of such order;
(iii) To receive, investigate, and report to the Secretary of Agriculture complaints of violations of such order; and
(iv) To recommend to the Secretary of Agriculture amendments to such order.
No person acting as a member of an agency established pursuant to this paragraph shall be deemed to be acting in an official capacity, within the meaning of section 610(g) of this title, unless such person receives compensation for his personal services from funds of the United States. There shall be included in the membership of any agency selected to administer a marketing order applicable to grapefruit for canning or freezing one or more representatives of processors of the commodity specified in such order.
(D) Incidental to, and not inconsistent with, the terms and conditions specified in subsections (5), (6), and (7) and necessary to effectuate the other provisions of such order.
(8) Orders with marketing agreement
Except as provided in subsection (9) of this section, no order issued pursuant to this section shall become effective until the handlers (excluding cooperative associations of producers who are not engaged in processing, distributing, or shipping the commodity or product thereof covered by such order) of not less than 50 per centum of the volume of the commodity or product thereof covered by such order which is produced or marketed within the production or marketing area defined in such order have signed a marketing agreement, entered into pursuant to section 608b of this title, which regulates the handling of such commodity or product in the same manner as such order, except that as to citrus fruits produced in any area producing what is known as California citrus fruits no order issued pursuant to this subsection shall become effective until the handlers of not less than 80 per centum of the volume of such commodity or product thereof covered by such order have signed such a marketing agreement: Provided, That no order issued pursuant to this subsection shall be effective unless the Secretary of Agriculture determines that the issuance of such order is approved or favored:
(A) By at least two-thirds of the producers who (except that as to citrus fruits produced in any area producing what is known as California citrus fruits said order must be approved or favored by three-fourths of the producers), during a representative period determined by the Secretary, have been engaged, within the production area specified in such marketing agreement or order, in the production for market of the commodity specified therein, or who, during such representative period, have been engaged in the production of such commodity for sale in the marketing area specified in such marketing agreement, or order, or
(B) By producers who, during such representative period, have produced for market at least two-thirds of the volume of such commodity produced for market within the production area specified in such marketing agreement or order, or who, during such representative period, have produced at least two-thirds of the volume of such commodity sold within the marketing area specified in such marketing agreement or order.
(9) Orders with or without marketing agreement
Any order issued pursuant to this section shall become effective in the event that, notwithstanding the refusal or failure of handlers (excluding cooperative associations of producers who are not engaged in processing, distributing, or shipping the commodity or product thereof covered by such order) of more than 50 per centum of the volume of the commodity or product thereof (except that as to citrus fruits produced in any area producing what is known as California citrus fruits said per centum shall be 80 per centum) covered by such order which is produced or marketed within the production or marketing area defined in such order to sign a marketing agreement relating to such commodity or product thereof, on which a hearing has been held, the Secretary of Agriculture determines:
(A) That the refusal or failure to sign a marketing agreement (upon which a hearing has been held) by the handlers (excluding cooperative associations of producers who are not engaged in processing, distributing, or shipping the commodity or product thereof covered by such order) of more than 50 per centum of the volume of the commodity or product thereof (except that as to citrus fruits produced in any area producing what is known as California citrus fruits said per centum shall be 80 per centum) specified therein which is produced or marketed within the production or marketing area specified therein tends to prevent the effectuation of the declared policy of this chapter with respect to such commodity or product, and
(B) That the issuance of such order is the only practical means of advancing the interests of the producers of such commodity pursuant to the declared policy, and is approved or favored:
(i) By at least two-thirds of the producers (except that as to citrus fruits produced in any area producing what is known as California citrus fruits said order must be approved or favored by three-fourths of the producers) who, during a representative period determined by the Secretary, have been engaged, within the production area specified in such marketing agreement or order, in the production for market of the commodity specified therein, or who, during such representative period, have been engaged in the production of such commodity for sale in the marketing area specified in such marketing agreement, or order, or
(ii) By producers who, during such representative period, have produced for market at least two-thirds of the volume of such commodity produced for market within the production area specified in such marketing agreement or order, or who, during such representative period, have produced at least two-thirds of the volume of such commodity sold within the marketing area specified in such marketing agreement or order.
(10) Manner of regulation and applicability
No order shall be issued under this section unless it regulates the handling of the commodity or product covered thereby in the same manner as, and is made applicable only to persons in the respective classes of industrial or commercial activity specified in, a marketing agreement upon which a hearing has been held. No order shall be issued under this chapter prohibiting, regulating, or restricting the advertising of any commodity or product covered thereby, nor shall any marketing agreement contain any provision prohibiting, regulating, or restricting the advertising of any commodity, or product covered by such marketing agreement.
(11) Regional application
(A) No order shall be issued under this section which is applicable to all production areas or marketing areas, or both, of any commodity or product thereof unless the Secretary finds that the issuance of several orders applicable to the respective regional production areas or regional marketing areas, or both, as the case may be, of the commodity or product would not effectively carry out the declared policy of this chapter.
(B) Except in the case of milk and its products, orders issued under this section shall be limited in their application to the smallest regional production areas or regional marketing areas, or both, as the case may be, which the Secretary finds practicable, consistently with carrying out such declared policy.
(C) All orders issued under this section which are applicable to the same commodity or product thereof shall, so far as practicable, prescribe such different terms, applicable to different production areas and marketing areas, as the Secretary finds necessary to give due recognition to the differences in production and marketing of such commodity or product in such areas.
(D) In the case of milk and its products, no county or other political subdivision of the State of Nevada shall be within the marketing area definition of any order issued under this section.
(12) Cooperative association representation
Whenever, pursuant to the provisions of this section, the Secretary is required to determine the approval or disapproval of producers with respect to the issuance of any order, or any term or condition thereof, or the termination thereof, the Secretary shall consider the approval or disapproval by any cooperative association of producers, bona fide engaged in marketing the commodity or product thereof covered by such order, or in rendering services for or advancing the interests of the producers of such commodity, as the approval or disapproval of the producers who are members of, stockholders in, or under contract with, such cooperative association of producers.
(13) Retailer and producer exemption
(A) No order issued under subsection (9) of this section shall be applicable to any person who sells agricultural commodities or products thereof at retail in his capacity as such retailer, except to a retailer in his capacity as a retailer of milk and its products.
(B) No order issued under this chapter shall be applicable to any producer in his capacity as a producer.
(14) Violation of order
(A) Any handler subject to an order issued under this section, or any officer, director, agent, or employee of such handler, who violates any provision of such order shall, on conviction, be fined not less than $50 or more than $5,000 for each such violation, and each day during which such violation continues shall be deemed a separate violation. If the court finds that a petition pursuant to subsection (15) of this section was filed and prosecuted by the defendant in good faith and not for delay, no penalty shall be imposed under this subsection for such violations as occurred between the date upon which the defendant's petition was filed with the Secretary, and the date upon which notice of the Secretary's ruling thereon was given to the defendant in accordance with regulations prescribed pursuant to subsection (15).
(B) Any handler subject to an order issued under this section, or any officer, director, agent, or employee of such handler, who violates any provision of such order may be assessed a civil penalty by the Secretary not exceeding $1,000 for each such violation. Each day during which such violation continues shall be deemed a separate violation, except that if the Secretary finds that a petition pursuant to paragraph (15) was filed and prosecuted by the handler in good faith and not for delay, no civil penalty may be assessed under this paragraph for such violations as occurred between the date on which the handler's petition was filed with the Secretary, and the date on which notice of the Secretary's ruling thereon was given to the handler in accordance with regulations prescribed pursuant to paragraph (15). The Secretary may issue an order assessing a civil penalty under this paragraph only after notice and an opportunity for an agency hearing on the record. Such order shall be treated as a final order reviewable in the district courts of the United States in any district in which the handler subject to the order is an inhabitant, or has the handler's principal place of business. The validity of such order may not be reviewed in an action to collect such civil penalty.
(15) Petition by handler and review
(A) Any handler subject to an order may file a written petition with the Secretary of Agriculture, stating that any such order or any provision of any such order or any obligation imposed in connection therewith is not in accordance with law and praying for a modification thereof or to be exempted therefrom. He shall thereupon be given an opportunity for a hearing upon such petition, in accordance with regulations made by the Secretary of Agriculture, with the approval of the President. After such hearing, the Secretary shall make a ruling upon the prayer of such petition which shall be final, if in accordance with law.
(B) The District Courts of the United States in any district in which such handler is an inhabitant, or has his principal place of business, are hereby vested with jurisdiction in equity to review such ruling, provided a bill in equity for that purpose is filed within twenty days from the date of the entry of such ruling. Service of process in such proceedings may be had upon the Secretary by delivering to him a copy of the bill of complaint. If the court determines that such ruling is not in accordance with law, it shall remand such proceedings to the Secretary with directions either (1) to make such ruling as the court shall determine to be in accordance with law, or (2) to take such further proceedings as, in its opinion, the law requires. The pendency of proceedings instituted pursuant to this subsection (15) shall not impede, hinder, or delay the United States or the Secretary of Agriculture from obtaining relief pursuant to section 608a(6) of this title. Any proceedings brought pursuant to section 608a(6) of this title (except where brought by way of counterclaim in proceedings instituted pursuant to this subsection (15)) shall abate whenever a final decree has been rendered in proceedings between the same parties, and covering the same subject matter, instituted pursuant to this subsection (15).
(16) Termination of orders and marketing agreements
(A)(i) Except as provided in clause (ii), the Secretary of Agriculture shall, whenever he finds that any order issued under this section, or any provision thereof, obstructs or does not tend to effectuate the declared policy of this chapter, terminate or suspend the operation of such order or such provision thereof.
(ii) The Secretary may not terminate any order issued under this section for a commodity for which there is no Federal program established to support the price of such commodity unless the Secretary gives notice of, and a statement of the reasons relied upon by the Secretary for, the proposed termination of such order to the Committee on Agriculture, Nutrition, and Forestry of the Senate and the Committee on Agriculture of the House of Representatives not later than 60 days before the date such order will be terminated.
(B) The Secretary shall terminate any marketing agreement entered into under section 608b of this title, or order issued under this section, at the end of the then current marketing period for such commodity, specified in such marketing agreement or order, whenever he finds that such termination is favored by a majority of the producers who, during a representative period determined by the Secretary, have been engaged in the production for market of the commodity specified in such marketing agreement or order, within the production area specified in such marketing agreement or order, or who, during such representative period, have been engaged in the production of such commodity for sale within the marketing area specified in such marketing agreement or order: Provided, That such majority have, during such representative period, produced for market more than 50 per centum of the volume of such commodity produced for market within the production area specified in such marketing agreement or order, or have, during such representative period, produced more than 50 per centum of the volume of such commodity sold in the marketing area specified in such marketing agreement or order, but such termination shall be effective only if announced on or before such date (prior to the end of the then current marketing period) as may be specified in such marketing agreement or order.
(C) Except as otherwise provided in this subsection with respect to the termination of an order issued under this section, the termination or suspension of any order or amendment thereto or provision thereof, shall not be considered an order within the meaning of this section.
(17) Provisions applicable to amendments
(A) Applicability to amendments
The provisions of this section and section 608d of this title applicable to orders shall be applicable to amendments to orders.
(B) Supplemental rules of practice
(i) In general
Not later than 60 days after the date of enactment of this subparagraph, the Secretary shall issue, using informal rulemaking, supplemental rules of practice to define guidelines and timeframes for the rulemaking process relating to amendments to orders.
(ii) Issues
At a minimum, the supplemental rules of practice shall establish—
(I) proposal submission requirements;
(II) pre-hearing information session specifications;
(III) written testimony and data request requirements;
(IV) public participation timeframes; and
(V) electronic document submission standards.
(iii) Effective date
The supplemental rules of practice shall take effect not later than 120 days after the date of enactment of this subparagraph, as determined by the Secretary.
(C) Hearing timeframes
(i) In general
Not more than 30 days after the receipt of a proposal for an amendment hearing regarding a milk marketing order, the Secretary shall—
(I) issue a notice providing an action plan and expected timeframes for completion of the hearing not more than 120 days after the date of the issuance of the notice;
(II)(aa) issue a request for additional information to be used by the Secretary in making a determination regarding the proposal; and
(bb) if the additional information is not provided to the Secretary within the timeframe requested by the Secretary, issue a denial of the request; or
(III) issue a denial of the request.
(ii) Requirement
A post-hearing brief may be filed under this paragraph not later than 60 days after the date of an amendment hearing regarding a milk marketing order.
(iii) Recommended decisions
A recommended decision on a proposed amendment to an order shall be issued not later than 90 days after the deadline for the submission of post-hearing briefs.
(iv) Final decisions
A final decision on a proposed amendment to an order shall be issued not later than 60 days after the deadline for submission of comments and exceptions to the recommended decision issued under clause (iii).
(D) Industry assessments
If the Secretary determines it is necessary to improve or expedite rulemaking under this subsection, the Secretary may impose an assessment on the affected industry to supplement appropriated funds for the procurement of service providers, such as court reporters.
(E) Use of informal rulemaking
The Secretary may use rulemaking under section 553 of title 5 to amend orders, other than provisions of orders that directly affect milk prices.
(F) Avoiding duplication
The Secretary shall not be required to hold a hearing on any amendment proposed to be made to a milk marketing order in response to an application for a hearing on the proposed amendment if—
(i) the application requesting the hearing is received by the Secretary not later than 90 days after the date on which the Secretary has announced the decision on a previously proposed amendment to that order; and
(ii) the 2 proposed amendments are essentially the same, as determined by the Secretary.
(G) Monthly feed and fuel costs for make allowances
As part of any hearing to adjust make allowances under marketing orders commencing prior to September 30, 2012, the Secretary shall—
(i) determine the average monthly prices of feed and fuel incurred by dairy producers in the relevant marketing area;
(ii) consider the most recent monthly feed and fuel price data available; and
(iii) consider those prices in determining whether or not to adjust make allowances.
(18) Milk prices
The Secretary of Agriculture, prior to prescribing any term in any marketing agreement or order, or amendment thereto, relating to milk or its products, if such term is to fix minimum prices to be paid to producers or associations of producers, or prior to modifying the price fixed in any such term, shall ascertain the parity prices of such commodities. The prices which it is declared to be the policy of Congress to establish in section 602 of this title shall, for the purposes of such agreement, order, or amendment, be adjusted to reflect the price of feeds, the available supplies of feeds, and other economic conditions which affect market supply and demand for milk or its products in the marketing area to which the contemplated marketing agreement, order, or amendment relates. Whenever the Secretary finds, upon the basis of the evidence adduced at the hearing required by section 608b of this title or this section, as the case may be, that the parity prices of such commodities are not reasonable in view of the price of feeds, the available supplies of feeds, and other economic conditions which affect market supply and demand for milk and its products in the marketing area to which the contemplated agreement, order, or amendment relates, he shall fix such prices as he finds will reflect such factors, insure a sufficient quantity of pure and wholesome milk, and be in the public interest. Thereafter, as the Secretary finds necessary on account of changed circumstances, he shall, after due notice and opportunity for hearing, make adjustments in such prices.
(19) Producer referendum
For the purpose of ascertaining whether the issuance of an order is approved or favored by producers or processors, as required under the applicable provisions of this chapter, the Secretary may conduct a referendum among producers or processors and in the case of an order other than an amendatory order shall do so. The requirements of approval or favor under any such provision shall be held to be complied with if, of the total number of producers or processors, or the total volume of production, as the case may be, represented in such referendum, the percentage approving or favoring is equal to or in excess of the percentage required under such provision. The terms and conditions of the proposed order shall be described by the Secretary in the ballot used in the conduct of the referendum. The nature, content, or extent of such description shall not be a basis for attacking the legality of the order or any action relating thereto. Nothing in this subsection shall be construed as limiting representation by cooperative associations as provided in subsection (12) of this section. For the purpose of ascertaining whether the issuance of an order applicable to pears for canning or freezing is approved or favored by producers as required under the applicable provisions of this chapter, the Secretary shall conduct a referendum among producers in each State in which pears for canning or freezing are proposed to be included within the provisions of such marketing order and the requirements of approval or favor under any such provisions applicable to pears for canning or freezing shall be held to be complied with if, of the total number of producers, or the total volume of production, as the case may be, represented in such referendum, the percentage approving or favoring is equal to or in excess of 662/3 per centum except that in the event that pear producers in any State fail to approve or favor the issuance of any such marketing order, it shall not be made effective in such State.
(May 12, 1933, ch. 25, title I, §8c, as added Aug. 24, 1935, ch. 641, §5, 49 Stat. 753; amended June 25, 1936, ch. 804, 49 Stat. 1921; June 3, 1937, ch. 296, §§1, 2(d)–(f), 50 Stat. 246, 247; June 3, 1937, ch. 296, §2(k), (l), as added Aug. 5, 1937, ch. 567, 50 Stat. 563; Apr. 13, 1938, ch. 143, §§1, 2, 52 Stat. 215; May 31, 1939, ch. 157, 53 Stat. 793; Feb. 10, 1942, ch. 52, §§2, 3, 56 Stat. 85; 1947 Reorg. Plan No. 1, §102, eff. July 1, 1947, 12 F.R. 4534, 61 Stat. 951; Aug. 1, 1947, ch. 425, §§2, 4, 61 Stat. 707, 710; July 3, 1948, ch. 827, title III, §302(b), (c), 62 Stat. 1258; June 29, 1949, ch. 273, 63 Stat. 282; Aug. 28, 1954, ch. 1041, title IV, §401(b)–(d), 68 Stat. 906, 907; Pub. L. 87–128, title I, §141(3), (4), Aug. 8, 1961, 75 Stat. 304, 305; Pub. L. 87–703, title IV, §403, Sept. 27, 1962, 76 Stat. 632; Pub. L. 89–321, title I, §§101, 102, Nov. 3, 1965, 79 Stat. 1187; Pub. L. 89–330, §1(b), Nov. 8, 1965, 79 Stat. 1270; Pub. L. 91–196, §1, Feb. 20, 1970, 84 Stat. 14; Pub. L. 91–292, §1(2), June 25, 1970, 84 Stat. 333; Pub. L. 91–341, July 18, 1970, 84 Stat. 438; Pub. L. 91–363, July 31, 1970, 84 Stat. 687; Pub. L. 91–384, Aug. 18, 1970, 84 Stat. 827; Pub. L. 91–522, Nov. 25, 1970, 84 Stat. 1357; Pub. L. 91–524, title II, §201(a), Nov. 30, 1970, 84 Stat. 1359; Pub. L. 91–670, title I, §101, title II, §201, Jan. 11, 1971, 84 Stat. 2040, 2041; Pub. L. 92–120, Aug. 13, 1971, 85 Stat. 340; Pub. L. 92–233, Feb. 15, 1972, 86 Stat. 39; Pub. L. 92–466, Oct. 6, 1972, 86 Stat. 780; Pub. L. 91–524, title II, §201(f), Nov. 30, 1970, as added Pub. L. 93–86, §1(2)(B), Aug. 10, 1973, 87 Stat. 222; Pub. L. 93–230, Dec. 29, 1973, 87 Stat. 945; Pub. L. 95–279, title IV, §401(a), May 15, 1978, 92 Stat. 242; Pub. L. 96–494, title I, §101, Dec. 3, 1980, 94 Stat. 2570; Pub. L. 97–98, title I, §101(a), Dec. 22, 1981, 95 Stat. 1218; Pub. L. 98–171, §1, Nov. 29, 1983, 97 Stat. 1117; Pub. L. 98–180, title III, §304, Nov. 29, 1983, 97 Stat. 1151; Pub. L. 99–198, title I, §§131(a), 133, title XVI, §§1661(a), 1662(a), Dec. 23, 1985, 99 Stat. 1372, 1373, 1630, 1631; Pub. L. 100–203, title I, §1501, Dec. 22, 1987, 101 Stat. 1330–27; Pub. L. 100–418, title IV, §§4601, 4602, Aug. 23, 1988, 102 Stat. 1407; Pub. L. 101–624, title I, §§112, 113, title XIII, §1306, Nov. 28, 1990, 104 Stat. 3380, 3561; Pub. L. 102–237, title I, §115(2), Dec. 13, 1991, 105 Stat. 1840; Pub. L. 102–553, §2, Oct. 28, 1992, 106 Stat. 4141; Pub. L. 106–78, title VII, §§757(a), 760, Oct. 22, 1999, 113 Stat. 1171, 1173; Pub. L. 107–76, title VII, §765, Nov. 28, 2001, 115 Stat. 743; Pub. L. 107–171, title X, §10601(a), May 13, 2002, 116 Stat. 511; Pub. L. 108–379, §1, Oct. 30, 2004, 118 Stat. 2209; Pub. L. 109–215, §2(a), (b), Apr. 11, 2006, 120 Stat. 328, 329; Pub. L. 110–234, title I, §1504, May 22, 2008, 122 Stat. 993; Pub. L. 110–246, §4(a), title I, §1504, June 18, 2008, 122 Stat. 1664, 1721; Pub. L. 115–334, title I, §1403(a), Dec. 20, 2018, 132 Stat. 4518.)
Editorial Notes
References in Text
The Naval Stores Act, referred to in subsec. (2)(A), is act Mar. 3, 1923, ch. 217, 42 Stat. 1435, which is classified generally to chapter 4 (§91 et seq.) of this title. For complete classification of this Act to the Code, see section 91 of this title and Tables.
For the effective date of this sentence, referred to in subsec. (5)(A), see section 1403(b) of Pub. L. 115–334, set out as an Effective Date of 2018 Amendment note below.
The Standard Containers Act of 1916 and the Standard Containers Act of 1928, referred to in subsec. (6)(H), are act Aug. 31, 1916, ch. 426, 39 Stat. 673, as amended, and act May 21, 1928, ch. 664, 45 Stat. 685, as amended, respectively, and were repealed by Pub. L. 90–628, §1(a), (b), Oct. 22, 1968, 82 Stat. 1320.
The date of enactment of this subparagraph, referred to in subsec. (17)(B)(i), (iii), is the date of enactment of Pub. L. 110–246, which was approved June 18, 2008.
Codification
Subsec. 5(B)(e), which permitted a provision for the accumulation and disbursement of a fund to encourage seasonal adjustments in the production of milk to be included in an order, was omitted as terminated. See Effective and Termination Dates of 1981 Amendment note set out below.
Subsec. (5)(H), which permitted marketing orders applicable to milk and its products to be limited in application to milk used for manufacturing, was omitted as terminated. See Termination of 1965 Amendment note set out below.
Phrase ", with the approval of the President," following "Secretary of Agriculture" in introductory provisions of subsec. (9) of this section, was omitted on the authority of section 102 of 1947 Reorg. Plan No. 1, set out in the Appendix to Title 5, Government Organization and Employees, which abolished the function of the President with respect to approving determinations of the Secretary of Agriculture in connection with agricultural marketing orders under this section.
The words "(including the district court of the United States for the District of Columbia)" in subsec. (15)(B) following "The District Courts of the United States" have been deleted as superfluous in view of section 132(a) of Title 28, Judiciary and Judicial Procedure which states that "There shall be in each judicial district a district court which shall be a court of record known as the United States District Court for the district.", and section 88 of said Title 28 which states in part that "The District of Columbia constitutes one judicial district."
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2018—Subsec. (5)(A). Pub. L. 115–334 added third sentence and struck out former third sentence and table which related to minimum aggregate dollar amount of adjustments to prices for milk of the highest use classification under orders that were in effect under this section on Dec. 23, 1985, and fourth sentence which related to adjustment of prices for locations specified in the table at which delivery of such milk was made.
2008—Subsec. (17). Pub. L. 110–246, §1504, added subsec. (17) and struck out former subsec. (17). Prior to amendment, text read as follows: "The provisions of this section, section 608d of this title, applicable to orders shall be applicable to amendments to orders: Provided, That notice of a hearing upon a proposed amendment to any order issued pursuant to this section, given not less than three days prior to the date fixed for such hearing, shall be deemed due notice thereof."
2006—Subsec. (5)(M) to (O). Pub. L. 109–215, §2(a), added pars. (M) to (O).
Subsec. (11). Pub. L. 109–215, §2(b)(1), which directed striking out last sentence in subpar. (C), was executed by striking out concluding provisions "The price of milk paid by a handler at a plant operating in Clark County, Nevada shall not be subject to any order issued under this section." which followed subpar. (C) to reflect the probable intent of Congress.
Subsec. (11)(D). Pub. L. 109–215, §2(b)(2), added par. (D).
2004—Subsec. (7)(C). Pub. L. 108–379, in concluding provisions, struck out "or pears" after "grapefruit" and ": Provided, That in a marketing order applicable to pears for canning or freezing the representation of processors and producers on such agency shall be equal" before period at end.
2002—Subsec. (2)(A). Pub. L. 107–171, §10601(a)(1), inserted "caneberries (including raspberries, blackberries, and loganberries)," after "other than pears, olives, grapefruit, cherries,".
Subsec. (6)(I). Pub. L. 107–171, §10601(a)(2), substituted "tomatoes, caneberries (including raspberries, blackberries, and loganberries)," for "tomatoes,," in first proviso.
2001—Subsec. (1). Pub. L. 107–76, which directed insertion of "The Secretary is authorized to implement a producer allotment program and a handler withholding program under the cranberry marketing order in the same crop year through informal rulemaking based on a recommendation and supporting economic analysis submitted by the Cranberry Marketing Committee. Such recommendation and analysis shall be submitted by the Committee no later than March 1 of each year." at end of penultimate sentence of section 8c(1) of the Agricultural Marketing Agreement Act of 1937, was executed to this section, which is section 8c(1) of the Agricultural Adjustment Act, to reflect the probable intent of Congress.
1999—Subsec. (6)(I). Pub. L. 106–78, §757(a)(2), substituted "Florida Indian River grapefruit, and cranberries" for "and Florida Indian River grapefruit" in first proviso.
Pub. L. 106–78, §757(a)(1), which directed substitution of ", Florida grown strawberries, or cranberries" for "or Florida grown strawberries" in first proviso, was executed by making the substitution for "or Florida-grown strawberries" to reflect the probable intent of Congress.
Subsec. (11). Pub. L. 106–78, §760, inserted at end "The price of milk paid by a handler at a plant operating in Clark County, Nevada shall not be subject to any order issued under this section."
1992—Subsec. (1). Pub. L. 102–553 inserted at end "In carrying out this section, the Secretary shall complete all informal rulemaking actions necessary to respond to recommendations submitted by administrative committees for such orders as expeditiously as possible, but not more than 45 days (to the extent practicable) after submission of the committee recommendations. The Secretary shall establish time frames for each office and agency within the Department of Agriculture to consider the committee recommendations."
1991—Subsec. (5)(B). Pub. L. 102–237 substituted ", and" for "and," before cl. (f).
1990—Subsec. (5)(B)(f). Pub. L. 101–624, §112, added cl. (f).
Subsec. (5)(L). Pub. L. 101–624, §113, added par. (L).
Subsec. (14)(A). Pub. L. 101–624, §1306(1), struck out "(other than a provision calling for payment of a pro rata share of expenses)" before "shall, on conviction" and substituted ". If" for ": Provided, That if".
Subsec. (14)(B). Pub. L. 101–624, §1306(2), struck out "(other than a provision calling for payment of a pro rata share of expenses)" before "may be assessed".
1988—Subsec. (5)(K). Pub. L. 100–418, §4601, added par. (K).
Subsec. (6)(I). Pub. L. 100–418, §4602, substituted "tomatoes, or Florida-grown strawberries," for "or tomatoes" in first proviso.
1987—Subsec. (14). Pub. L. 100–203 designated existing provisions as par. (A) and added par. (B).
1985—Subsec. (5)(A). Pub. L. 99–198, §131(a), inserted provisions, with accompanying table, establishing the minimum aggregate amounts of the adjustments under cls. (1) and (2) to prices for milk of the highest use classification under orders in effect on Dec. 23, 1985, and requiring that such prices be adjusted for the locations at which delivery of such milk is made to such handlers.
Subsec. (5)(J). Pub. L. 99–198, §133, added par. (J).
Subsec. (14). Pub. L. 99–198, §1661(a), substituted "$5,000" for "$500".
Subsec. (16)(A). Pub. L. 99–198, §1662(a)(1), designated existing provisions of par. (A) as cl. (i), substituted "Except as provided in clause (ii), the Secretary" for "The Secretary", and added cl. (ii).
Subsec. (16)(C). Pub. L. 99–198, §1662(a)(2), substituted "Except as otherwise provided in this subsection with respect to the termination of an order issued under this section, the termination" for "The termination".
1983—Subsec. (2)(B). Pub. L. 98–180, §304(1), substituted "poultry (but not excepting turkeys and not excepting poultry which produce commercial eggs)," for "poultry (but not excepting turkeys), eggs (but not excepting turkey hatching eggs),".
Subsec. (6)(I). Pub. L. 98–180, §304(2), inserted "eggs," after "pecans," in first proviso.
Pub. L. 98–171 inserted, in first proviso, "filberts (otherwise known as hazelnuts)," after "almonds," in two places.
1981—Subsec. (5)(B). Pub. L. 97–98, §101(a)(1), temporarily added cls. (d) and (e) and struck out former cl. (d) which read as follows: "a further adjustment, equitably to apportion the total value of the milk purchased by any handler, or by all handlers, among producers and associations of producers, on the basis of their marketings of milk during a representative period of time." See Effective and Termination Dates of 1981 Amendment note below.
Subsec. (17). Pub. L. 97–98, §101(a)(2), temporarily struck out period at end and added second proviso related to provisions governing procedures when one-third or more of producers apply in writing for a hearing on a proposed amendment of an order, prohibiting any construction of subsec. (12) in a way which might permit cooperatives to act for their members in applying for hearings, and excusing the Secretary from the requirement of having to call a hearing on proposed amendments to an order in response to an application for such a hearing when the application for such a hearing is received by the Secretary within ninety days after the date on which the Secretary has announced his decision on a previously proposed amendment to such order and the two proposed amendments are essentially the same. See Effective and Termination Dates of 1981 Amendment note below. A substantially identical amendment was temporarily made by Pub. L. 91–524, §201(f)(1), as added by Pub. L. 93–86, see 1970 Amendment note and Termination of 1970 Amendment note below.
Subsec. (18). Pub. L. 97–98, §101(a)(3), temporarily inserted "to meet current needs and further to assure a level of farm income adequate to maintain productive capacity sufficient to meet anticipated future needs" after "pure and wholesome milk". See Effective and Termination Dates of 1981 Amendment note below. An identical amendment was temporarily made by Pub. L. 91–524, §201(f)(2), as added by Pub. L. 93–86, see 1970 Amendment note and Termination of 1970 Amendment note below.
1980—Subsec. (6)(I). Pub. L. 96–494 inserted, in first proviso, "walnuts," before "or tomatoes" and "walnuts, olives," before "and Florida Indian River grapefruit".
1978—Subsec. (6)(I). Pub. L. 95–279 inserted, in first proviso, "raisins," after "apples," and ", raisins," after "with respect to almonds".
1973—Subsec. (6)(I). Pub. L. 93–230 inserted "and Florida Indian River grapefruit" after "with respect to almonds" in first proviso.
Subsec. (17). Pub. L. 93–86 added Pub. L. 91–524, §201(f)(1). See 1970 Amendment note below.
Subsec. (18). Pub. L. 93–86 added Pub. L. 91–524, §201(f)(2). See 1970 Amendment note below.
1972—Subsec. (2)(A). Pub. L. 92–466, §1(1), inserted "pears," after "canned or frozen" the first time appearing and before "olives,".
Pub. L. 92–233, §1(1), inserted "and not including potatoes for canning, freezing, or other processing" after "vegetables (not including vegetables, other than asparagus, for canning or freezing". The amendment served to make permanent the temporary exemption first inserted by Pub. L. 91–196, §1(1). See 1970 Amendment note and Effective Date of 1970 Amendment note below.
Subsec. (2)(B). Pub. L. 92–233, §1(2), inserted "including potatoes for canning, freezing, or other processing" after "fruits and vegetables for canning or freezing,". The amendment served to make permanent the temporary exemption first inserted by Pub. L. 91–196, §1(2). See 1970 Amendment note and Effective Date of 1970 Amendment note below.
Subsec. (6)(I). Pub. L. 92–466, §1(2), in first proviso, struck out "fresh" before "pears" and inserted at end "and when the handling of any commodity for canning or freezing is regulated, then any such projects may also deal with the commodity or its products in canned or frozen form".
Subsec. (6)(J). Pub. L. 92–466, §1(5), added par. (J).
Subsec. (7)(C). Pub. L. 92–466, §1(3), inserted "or pears" after "a marketing order applicable to grapefruit", struck out period at end, and inserted ": Provided, That in a marketing order applicable to pears for canning or freezing the representation of processors and producers on such agency shall be equal."
Subsec. (19). Pub. L. 92–466, §1(4), inserted provision respecting producer or processor referendum for approving order applicable to pears for canning or freezing.
1971—Subsec. (5)(I). Pub. L. 91–670, §101, added par. (I).
Subsec. (6)(I). Pub. L. 92–120 inserted "California-grown peaches," after "applicable to almonds," in first proviso.
Pub. L. 91–670, §201, substituted "apples, or tomatoes" for "or apples" in first proviso.
1970—Subsec. (2)(A). Pub. L. 91–341 substituted "Connecticut, Colorado, Utah, New Mexico, Illinois, and Ohio" for "and Connecticut".
Pub. L. 91–196, §1(1), temporarily inserted "and not including potatoes for canning, freezing, or other processing" after "vegetables (not including vegetables, other than asparagus, for canning or freezing". See Effective Date of 1970 Amendment note below.
Subsec. (2)(B). Pub. L. 91–196, §1(2), temporarily inserted "including potatoes for canning, freezing, or other processing," after "fruits and vegetables for canning or freezing,". See Effective Date of 1970 Amendment note below.
Subsec. (5)(B). Pub. L. 91–524, §201(a), temporarily added cls. (d) to (f) and struck out former cl. (d) and concluding provisions. See Termination of 1970 Amendment note below.
Subsec. (6)(I). Pub. L. 91–522 inserted "almonds," before "cherries" in first proviso, inserted at end of first proviso "and with respect to almonds may provide for crediting the pro rata expense assessment obligations of a handler with all or any portion of his direct expenditures for such marketing promotion including paid advertising as may be authorized by the order", and amended second proviso generally.
Pub. L. 91–384 inserted "papayas," after "applicable to cherries," in first proviso.
Pub. L. 91–363 substituted "avocados, or apples" for "or avocados" in first proviso.
Pub. L. 91–292 which directed the insertion of "production research," after "Establishing or providing for the establishment of", was executed by making the insertion after "establishing or providing for the establishment of" to reflect the probable intent of Congress, inserted "or efficient production" after "consumption", and struck out period at end and inserted ": Provided further, That the inclusion in a Federal marketing order of provisions for research shall not be deemed to preclude, preempt or supersede research provisions in any State program covering the same commodity."
Subsec. (17). Pub. L. 91–524, §201(f)(1), as added by Pub. L. 93–86, temporarily struck out period at end and added second proviso related to provisions governing procedures when one-third or more of producers apply in writing for a hearing on a proposed amendment of an order, prohibiting any construction of subsec. (12) in a way which might permit cooperatives to act for their members in applying for hearings, and excusing the Secretary from the requirement of having to call a hearing on proposed amendments to an order in response to an application for such a hearing when the application for such a hearing is received by the Secretary within ninety days after the date on which the Secretary has announced his decision on a previously proposed amendment to such order and the two proposed amendments are essentially the same. See Termination of 1970 Amendment note below.
Subsec. (18). Pub. L. 91–524, §201(f)(2), as added by Pub. L. 93–86, temporarily inserted "to meet current needs and further to assure a level of farm income adequate to maintain productive capacity sufficient to meet anticipated future needs" after "pure and wholesome milk". See Termination of 1970 Amendment note below.
1965—Subsec. (5)(B). Pub. L. 89–321, §101, temporarily added cl. (d) and concluding provisions and struck out former cl. (d). See Termination of 1965 Amendments note below.
Subsec. (5)(H). Pub. L. 89–321, §102(a), temporarily added par. (H). See Termination of 1965 Amendments note below.
Subsec. (6)(I). Pub. L. 89–330 inserted ", carrots, citrus fruits, onions, Tokay grapes, fresh pears, dates, plums, nectarines, celery, sweet corn, limes, olives, pecans, or avocados" after "applicable to cherries" in proviso.
Subsec. (18). Pub. L. 89–321, §102(b), temporarily inserted "or, in the case of orders applying only to manufacturing milk, the production area" after "marketing area" in two places. See Termination of 1965 Amendments note below.
1962—Subsec. (6)(I). Pub. L. 87–703 struck out period at end and inserted ": Provided, That with respect to orders applicable to cherries such projects may provide for any form of marketing promotion including paid advertising."
1961—Subsec. (2). Pub. L. 87–128, §141(3), designated provisions after "applicable only to" as par. (A), inserted "cherries, apples, or cranberries," after "grapefruit," the first time appearing, substituted "Idaho, New York, Michigan, Maryland, New Jersey, Indiana, California, Maine, Vermont, New Hampshire, Rhode Island, Massachusetts, and Connecticut, and not including fruits for canning or freezing other than olives, grapefruit, cherries, cranberries, and apples produced in the States named above except Washington, Oregon, and Idaho)" for "and Idaho, and not including fruits, other than olives and grapefruit, for canning or freezing)", struck out "soybeans," before "hops, honeybees", and added par. (B).
Subsec. (19). Pub. L. 87–128, §141(4), amended text generally.
1954—Subsec. (2). Act Aug. 28, 1954, §401(b), amended text generally.
Subsec. (6). Act Aug. 28, 1954, §401(c), added introductory provisions and struck out former introductory provisions and added pars. (H) and (I).
Subsec. (7)(C). Act Aug. 28, 1954, §401(d), inserted at end "There shall be included in the membership of any agency selected to administer a marketing order applicable to grapefruit for canning or freezing one or more representatives of processors of the commodity specified in such order."
1949—Subsecs. (2), (6). Act June 29, 1949, inserted "filberts, almonds," before "pecans and walnuts" in subsec. (2) and in introductory provisions of subsec. (6).
1948—Subsec. (17). Act July 3, 1948, §302(c), struck out "and section 608e of this title".
Subsec. (18). Act July 3, 1948, §302(b), amended text generally.
1947—Subsec. (2). Act Aug. 1, 1947, §4, inserted "or freezing" after "canning" in two places.
Subsec. (6). Act Aug. 1, 1947, §2, amended text generally.
1942—Subsec. (6). Act Feb. 10, 1942, substituted "hops and their products," for "hops," in introductory provisions and added par. (F).
1939—Subsecs. (2), (6). Act May 31, 1939, made technical amendment to Act June 3, 1937, §2, by adding a subsection (m) designation at the end thereof and amended this section by inserting ", other than apples produced in the States of Washington, Oregon, and Idaho," after "apples" in subsec. (2) and in introductory provisions of subsec. (6).
1938—Subsec. (2). Act Apr. 13, 1938, §1, inserted ", hops," after "soybeans".
Subsec. (6). Act Apr. 13, 1938, §2, inserted ", hops," after "soybeans and their products" in introductory provisions.
1937—Act June 3, 1937, §1, affirmed, validated, and reenacted provisions of section. See Validity of Section Affirmed note below.
Subsec. (2). Act Aug. 5, 1937, amended act June 3, 1937, by adding thereto subsec. (k), which in turn directed the insertion of "and the products of honeybees" after "except the products of naval stores", which was executed by making the insertion after "except products of naval stores", to reflect the probable intent of Congress and inserted ", honeybees" after "soybeans".
Subsec. (5)(B)(d). Act June 3, 1937, §2(d), substituted "marketings of milk" for "production of milk".
Subsec. (6). Act Aug. 5, 1937, amended act June 3, 1937, by adding subsec. (l), which in turn amended subsec. (6) by inserting "honeybees," after "soybeans and their products," in introductory provisions.
Subsec. (6)(B). Act June 3, 1937, §2(e), struck out "produced or" before "sold by such producers" and substituted "quantities available for sale by" for "production or sales of".
Subsecs. (18), (19). Act June 3, 1937, §2(f), added subsecs. (18) and (19).
1936—Subsec. (15)(B). Act June 25, 1936, provided that the Supreme Court of the District of Columbia should thereafter be known as the "district court of the United States for the District of Columbia". See Codification note above.
1935—Act Aug. 24, 1935, added section to the Agricultural Adjustment Act and struck out former section 608(3) of this title.
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Pub. L. 115–334, title I, §1403(b), Dec. 20, 2018, 132 Stat. 4518, provided that:
"(1)
"(2)
"(A) The notice and comment provisions of section 553 of title 5, United States Code.
"(B) The notice and hearing requirements of section 8c(3) of the Agricultural Adjustment Act (7 U.S.C. 608c(3)), reenacted with amendments by the Agricultural Marketing Agreement Act of 1937 [act June 3, 1937].
"(C) The order amendment requirements of section 8c(17) of that Act (7 U.S.C. 608c(17)).
"(D) A referendum under section 8c(19) of that Act (7 U.S.C. 608c(19))."
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Effective Date of 2006 Amendment
Pub. L. 109–215, §2(d), Apr. 11, 2006, 120 Stat. 330, provided that: "The amendments made by this section [amending this section] take effect on the first day of the first month beginning more than 15 days after the date of the enactment of this Act [Apr. 11, 2006]. To accomplish the expedited implementation of these amendments, effective on the date of the enactment of this Act, the Secretary of Agriculture shall include in the pool distributing plant provisions of each Federal milk marketing order issued under subparagraph (B) of section 8c(5) of the Agriculture Adjustment Act (7 U.S.C. 608c(5)), reenacted with amendments by the Agriculture [Agricultural] Marketing Agreement Act of 1937, a provision that a handler described in subparagraph (M) of such section, as added by subsection (a) of this section, will be fully regulated by the order in which the handler's distributing plant is located. These amendments shall not be subject to a referendum under section 8c(19) of such Act (7 U.S.C. 608c(19))."
Effective Date of 1999 Amendment
Pub. L. 106–78, title VII, §760, Oct. 22, 1999, 113 Stat. 1173, provided that the amendment made by section 760 is effective Oct. 1, 1999.
Effective Date of 1990 Amendment
Amendments by sections 112 and 113 of Pub. L. 101–624 effective beginning with 1991 crop of an agricultural commodity, with provision for prior crops, see section 1171 of Pub. L. 101–624, set out as a note under section 1421 of this title.
Effective Dates of 1985 Amendment
Pub. L. 99–198, title I, §131(b), Dec. 23, 1985, 99 Stat. 1373, provided that: "The amendment made by this section [amending this section] shall take effect on the first day of the first month beginning more than 120 days after the date of the enactment of this Act [Dec. 23, 1985]."
Pub. L. 99–198, title I, §133, Dec. 23, 1985, 99 Stat. 1373, provided that the amendment made by that section is effective Jan. 1, 1986.
Pub. L. 99–198, title XVI, §1661(b), Dec. 23, 1985, 99 Stat. 1630, provided that: "The amendment made by subsection (a) [amending this section] shall not apply with respect to any violation described in section 8c(14) of the Agricultural Adjustment Act [subsec. (14) of this section] occurring before the date of the enactment of this Act [Dec. 23, 1985]."
Effective and Termination Dates of 1981 Amendment
Pub. L. 97–98, title I, §101(b), Dec. 22, 1981, 95 Stat. 1219, as amended by Pub. L. 99–198, title I, §132, Dec. 23, 1985, 99 Stat. 1373; Pub. L. 101–624, title I, §108, Nov. 28, 1990, 104 Stat. 3380; Pub. L. 103–66, title I, §1105(b), Aug. 10, 1993, 107 Stat. 317, provided that: "The provisions of subsection (a) [amending this section] shall become effective January 1, 1982, and shall terminate December 31, 1996."
Effective Date of 1978 Amendment
Pub. L. 95–279, title IV, §401(a), May 15, 1978, 92 Stat. 242, provided that the amendment made by that section is effective Oct. 1, 1978.
Effective Date of 1970 Amendment
Pub. L. 91–196, §2, Feb. 20, 1970, 84 Stat. 14, provided that: "The amendments made by this Act [amending this section] shall be effective only during the period beginning with the date of enactment of this Act [Feb. 20, 1970] and ending two years after such date." The limited effective period beginning Feb. 20, 1970, and ending two years after such date for the amendments made by Pub. L. 91–196 was removed as a result of the enactment of Pub. L. 92–233, Feb. 15, 1972, 86 Stat. 39, which made amendments to the section substantively identical to those made by Pub. L. 91–196 but without a time limit on such amendments of the type which had limited the duration of such earlier Pub. L. 91–196 amendments.
Termination of 1970 Amendment; Savings Provision
Pub. L. 91–524, title II, §201(e), Nov. 30, 1970, 84 Stat. 1361, as amended by Pub. L. 93–86, §1(2)(A), Aug. 10, 1973, 87 Stat. 222; Pub. L. 95–113, title II, §201, Sept. 29, 1977, 91 Stat. 919, provided that: "The provisions of this section [amending this section] shall not be effective after December 31, 1981, except with respect to orders providing for class I base plans issued prior to such date, but in no event shall any order so issued extend or be effective beyond December 31, 1984."
Termination of 1965 Amendment; Reversion of Status of Producer Handlers of Milk to Pre-Amendment Status
Pub. L. 89–321, title I, §§103, 104, Nov. 3, 1965, 79 Stat. 1188, as amended by Pub. L. 90–559, §1(3), Oct. 11, 1968, 82 Stat. 996, provided that:
"
"
Effective Date of 1948 Amendment
Amendment by act July 3, 1948, effective Jan. 1, 1950, see section 303 of act July 3, 1948, set out as a note under section 1301 of this title.
Short Title
Pub. L. 89–321, §1, Nov. 3, 1965, 79 Stat. 1187, provided: "That this Act [enacting sections 1305, 1306, 1316, 1344b, 1379, 1446a–1, and 1838 of this title, amending this section and sections 1301, 1314b, 1332, 1333, 1334, 1335, 1339, 1339a, 1339c, 1340, 1346, 1348, 1350, 1353, 1374, 1379b, 1379c, 1379d, 1379e, 1379g, 1379i, 1423, 1427, 1428, 1444, 1445a, and 1782 of this title and section 590p of Title 16, Conservation, repealing sections 1801 to 1816, 1821 to 1824, 1831, and 1832 to 1837 of this title, enacting provisions set out as notes under this section and sections 1282, 1301, 1332, 1334, 1339, 1350, 1359, 1379b, 1379c, 1379d, 1379i, 1428, 1441, and 1445a of this title and section 590p of Title 16, and amending provisions set out as notes under sections 1339, 1379c, and 1427 of this title] may be cited as the 'Food and Agriculture Act of 1965'."
Expedited Marketing Order for Hass Avocados for Grades and Standards and Other Purposes
Pub. L. 110–234, title X, §10108, May 22, 2008, 122 Stat. 1338, and Pub. L. 110–246, §4(a), title X, §10108, June 18, 2008, 122 Stat. 1664, 2099, provided that:
"(a)
"(b)
"(1)
"(2)
"(c)
[Pub. L. 110–234 and Pub. L. 110–246 enacted identical provisions. Pub. L. 110–234 was repealed by section 4(a) of Pub. L. 110–246, set out as a note under section 8701 of this title.]
Records and Facility Requirements
Pub. L. 109–215, §2(c), Apr. 11, 2006, 120 Stat. 330, provided that: "Notwithstanding any other provision of this section [amending this section and enacting provisions set out as notes under this section and section 601 of this title], or the amendments made by this section, a milk handler (including a producer-handler or a producer operating as a handler) that is subject to regulation under this section or an amendment made by this section shall comply with the requirements of section 1000.27 of title 7, Code of Federal Regulations, or a successor regulation, relating to handler responsibility for records or facilities."
Minnesota-Wisconsin Price Series Reform
Pub. L. 101–624, title I, §103, Nov. 28, 1990, 104 Stat. 3379, required the Secretary of Agriculture to consider alternative pricing formula recommendations as they related to the Minnesota-Wisconsin price series used to determine the minimum prices paid under milk marketing orders, to hold a national hearing on proposed replacements of that price series, and to report to Congress on issuance of a final decision on the hearing proposals.
Hearings on Federal Milk Marketing Orders
Pub. L. 101–624, title I, §104, Nov. 28, 1990, 104 Stat. 3379, required the Secretary of Agriculture to conclude national hearings on possible changes in the pricing provisions of Federal milk marketing orders by Mar. 29, 1990, and to effect any system-wide changes in the Federal orders setting minimum prices that milk processors must pay for Grade A milk received from producers, by Jan. 1, 1992.
Status of Producer Handlers
Pub. L. 101–624, title I, §115, Nov. 28, 1990, 104 Stat. 3381, provided that: "The legal status of producer handlers of milk under the Agricultural Adjustment Act (7 U.S.C. 601 et seq.), reenacted with amendments by the Agricultural Marketing Agreement Act of 1937, shall be the same after the amendments made by this title [enacting section 1446e of this title and amending this section and sections 1446a and 4553 of this title, section 713a–14 of Title 15, Commerce and Trade, and provisions set out as notes under this section and section 1731 of this title] take effect as it was before the effective date of the amendments [see Effective Date of 1990 Amendment note set out under section 1421 of this title]."
Multiple Component Pricing Study
Pub. L. 101–624, title I, §116, Nov. 28, 1990, 104 Stat. 3381, required the Secretary of Agriculture to initiate a study to determine whether, and to what extent, milkfat is being produced in the United States in excess of commercial market needs as a result of any provision of law, regulation, or order that affects the manner in which producers receive payment for milk on the basis of the milk components contained in their marketings of milk under any Federal or State milk pricing program, to report to Congress on the study not later than 180 days after Nov. 28, 1990, and to announce a hearing on multiple component pricing provisions in individual Federal milk marketing orders issued under this section.
Marketwide Service Payments
Pub. L. 99–260, §9, Mar. 20, 1986, 100 Stat. 51, provided that:
"(a)
"(b)
Termination of Marketing Orders
Pub. L. 99–198, title XVI, §1662(b), Dec. 23, 1985, 99 Stat. 1631, provided that: "The Secretary of Agriculture may not terminate any marketing order under section 8c(16) of the of the [so in original] Agricultural Adjustment Act (7 U.S.C. 608c(16)), reenacted with amendments by the Agricultural Marketing Agreement Act of 1937, if such termination becomes effective before January 16, 1986."
Report to Houses of Congress Regarding Implementation of Provisions Relating to Handling of Commodities
Pub. L. 95–279, title IV, §401(b), May 15, 1978, 92 Stat. 243, provided that, within a period of 60 days following the second anniversary of the implementation of section 401 of Pub. L. 95–279, the Secretary of Agriculture was to submit to Congress a report describing how section 401 was implemented.
Retention of Status of Producer Handlers of Milk at Pre-1985 Amendment Status
Pub. L. 99–198, title I, §134, Dec. 23, 1985, 99 Stat. 1373, provided that: "The legal status of producer handlers of milk under the Agricultural Adjustment Act (7 U.S.C. 601 et seq.), reenacted with amendments by the Agricultural Marketing Agreement Act of 1937, shall be the same after the amendments made by this title [probably means this subtitle, subtitle C (§§131–134) of title I of Pub. L. 99–198, amending subsec. (5) of this section and provisions set out as a note above] take effect as it was before the effective date of such amendments."
Retention of Status of Producer Handlers of Milk at Pre-1981 Amendment Status
Pub. L. 97–98, title I, §102, Dec. 22, 1981, 95 Stat. 1219, provided that: "The legal status of producer handlers of milk under the provisions of the Agricultural Adjustment Act, as reenacted and amended by the Agricultural Marketing Agreement Act of 1937 [this chapter] shall be the same subsequent to the adoption of the amendment made by the Agriculture and Food Act of 1981 [see Tables] as it was prior thereto."
Retention of Status of Producer Handlers of Milk at Pre-1977 Amendment Status
Pub. L. 95–113, title II, §202, Sept. 29, 1977, 91 Stat. 919, provided that: "The legal status of producer handlers of milk under the provisions of the Agricultural Adjustment Act [see Short Title note set out under section 601 of this title], as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended [act June 3, 1937, ch. 296, 50 Stat. 246, set out as a note under section 601 of this title] shall be the same subsequent to the adoption of the amendment made by the Food and Agriculture Act of 1977 [see Short Title of 1977 Amendment note set out under section 1281 of this title] as it was prior thereto."
Retention of Status of Producer Handlers of Milk at Pre-1973 Amendment Status
Pub. L. 91–524, title II, §206, as added by Pub. L. 93–86, §1(6), Aug. 10, 1973, 87 Stat. 224; amended Pub. L. 93–125, §1(a)(iii), Oct. 18, 1973, 87 Stat. 450, provided that: "The legal status of producer handlers of milk under the provisions of the Agricultural Adjustment Act, as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended, shall be the same subsequent to the adoption of the amendments made by the Agriculture and Consumer Protection Act of 1973 [Pub. L. 93–86, amending this section and sections 1446, 1446a, and 4553 of this title] as it was prior thereto."
Retention of Status of Producer Handlers of Milk at Pre-1970 Amendment Status
Pub. L. 91–524, title II, §201(b), Nov. 30, 1970, 84 Stat. 1361, provided that the legal status of producer handlers of milk under the Agricultural Adjustment Act shall be the same subsequent to the adoption of the amendments made by Pub. L. 91–524 as it was prior thereto. For termination of this provision, see Termination of 1970 Amendment note above.
Ratification, Legalization, Confirmation, and Extension of Class I Base Plan Provisions in Marketing Orders Issued Prior to Nov. 30, 1970
Pub. L. 91–524, title II, §201(c), Nov. 30, 1970, 84 Stat. 1361, validated and expressly ratified, legalized, and confirmed class I base plan provisions of marketing orders previously issued by the Secretary of Agriculture. For termination of this provision, see Termination of 1970 Amendment note above.
Reaffirmation of Subsec. (5)(G) of This Section
Pub. L. 91–524, title II, §201(d), Nov. 30, 1970, 84 Stat. 1361, clarified Congressional intent that subsection (5)(G) be fully reaffirmed and in no way altered, rescinded, or amended. For termination of this provision, see Termination of 1970 Amendment note above.
Validity of Section Affirmed
Act June 3, 1937, ch. 296, §1, 50 Stat. 246, affirmed and validated, and reenacted without change the provisions of this section, except for the amendments to subsections (5)(B)(d) and (6)(B) by section 2 of the act, and the addition of subsections (18) and (19) by said section 2. See Validity of Certain Sections Affirmed note set out under section 601 of this title.
1 So in original. Probably should be followed by a comma.
3 So in original. Probably should be followed by a period.
4 So in original. Probably should be "paragraph".
5 So in original. Probably should be "clause".
6 So in original. Probably should be capitalized.
7 So in original. Probably should be a period.
8 So in original. Probably should be "Florida-grown".
§608c–1. Repealed. June 29, 1945, ch. 196, 59 Stat. 263
Section, acts Apr. 13, 1938, ch. 143, §3, 52 Stat. 215; May 26, 1939, ch. 150, 53 Stat. 782; Feb. 10, 1942, ch. 52, §1, 56 Stat. 85, related to orders applicable to hops. Section was not a part of the Agricultural Adjustment Act of 1933.
§608d. Books and records
(1) All parties to any marketing agreement, and all handlers subject to an order, shall severally, from time to time, upon the request of the Secretary, furnish him with such information as he finds to be necessary to enable him to ascertain and determine the extent to which such agreement or order has been carried out or has effectuated the declared policy of this chapter and with such information as he finds to be necessary to determine whether or not there has been any abuse of the privilege of exemptions from the antitrust laws. Such information shall be furnished in accordance with forms of reports to be prescribed by the Secretary. For the purpose of ascertaining the correctness of any report made to the Secretary pursuant to this subsection, or for the purpose of obtaining the information required in any such report, where it has been requested and has not been furnished, the Secretary is authorized to examine such books, papers, records, copies of income-tax reports, accounts, correspondence, contracts, documents, or memoranda, as he deems relevant and which are within the control (1) of any such party to such marketing agreement, or any such handler, from whom such report was requested or (2) of any person having, either directly or indirectly, actual or legal control of or over such party or such handler or (3) of any subsidiary of any such party, handler, or person.
(2) Notwithstanding the provisions of section 607 of this title, all information furnished to or acquired by the Secretary of Agriculture pursuant to this section, as well as information for marketing order programs that is categorized as trade secrets and commercial or financial information exempt under section 552(b)(4) of title 5 from disclosure under section 552 of such title, shall be kept confidential by all officers and employees of the Department of Agriculture and only such information so furnished or acquired as the Secretary deems relevant shall be disclosed by them, and then only in a suit or administrative hearing brought at the direction, or upon the request, of the Secretary of Agriculture, or to which he or any officer of the United States is a party, and involving the marketing agreement or order with reference to which the information so to be disclosed was furnished or acquired. Notwithstanding the preceding sentence, any such information relating to a marketing agreement or order applicable to milk may be released upon the authorization of any regulated milk handler to whom such information pertains. The Secretary shall notify the Committee on Agriculture, Nutrition, and Forestry of the Senate and the Committee on Agriculture of the House of Representatives not later than 10 legislative days before the contemplated release under law, of the names and addresses of producers participating in such marketing agreements and orders, and shall include in such notice a statement of reasons relied upon by the Secretary in making the determination to release such names and addresses. Nothing in this section shall be deemed to prohibit (A) the issuance of general statements based upon the reports of a number of parties to a marketing agreement or of handlers subject to an order, which statements do not identify the information furnished by any person, or (B) the publication by direction of the Secretary, of the name of any person violating any marketing agreement or any order, together with a statement of the particular provisions of the marketing agreement or order violated by such person. Any such officer or employee violating the provisions of this section shall upon conviction be subject to a fine of not more than $1,000 or to imprisonment for not more than one year, or to both, and shall be removed from office.
(3)
(A)
(B)
(C)
(D)
(May 12, 1933, ch. 25, title I, §8d, as added Aug. 24, 1935, ch. 641, §6, 49 Stat. 761; amended June 3, 1937, ch. 296, §1, 50 Stat. 246; Pub. L. 99–198, title XVI, §1663, Dec. 23, 1985, 99 Stat. 1631; Pub. L. 106–78, title VII, §757(b), Oct. 22, 1999, 113 Stat. 1171.)
Editorial Notes
Codification
Act Aug. 24, 1935, struck out provisions of section 8(4) of act May 12, 1933, formerly appearing in section 608(4) of this title and added a new section 8d containing provisions appearing in text.
Amendments
1999—Subsec. (3). Pub. L. 106–78 added subsec. (3).
1985—Subsec. (2). Pub. L. 99–198, §1663(1), extended confidentiality requirement to include information for marketing order programs that is categorized as trade secrets and commercial or financial information that is exempt from disclosure under section 552 of title 5.
Pub. L. 99–198, §1663(2), inserted provisions directing that confidential information relating to a marketing agreement or order applicable to milk may be released upon the authorization of any regulated milk handler to whom such information pertains and that the Secretary notify the Committee on Agriculture, Nutrition, and Forestry of the Senate and the Committee on Agriculture of the House of Representatives not later than 10 legislative days before the contemplated release under law, of the names and addresses of producers participating in such marketing agreements and orders, and include in such notice a statement of reasons relied upon by the Secretary in making the determination to release such names and addresses.
Statutory Notes and Related Subsidiaries
Release of Information
Pub. L. 103–111, title VII, §715, Oct. 21, 1993, 107 Stat. 1079, provided that: "Hereafter, none of the funds available to the Department of Agriculture may be expended to release information acquired from any handler under the Agricultural Marketing Agreement Act of 1937, as amended [see section 674 of this title]: Provided, That this provision shall not prohibit the release of information to other Federal agencies for enforcement purposes: Provided further, That this provision shall not prohibit the release of aggregate statistical data used in formulating regulations pursuant to the Agricultural Marketing Agreement Act of 1937, as amended: Provided further, That this provision shall not prohibit the release of information submitted by milk handlers."
Similar provisions were contained in the following prior appropriation acts:
Pub. L. 102–341, title VII, §721, Aug. 14, 1992, 106 Stat. 908.
Pub. L. 102–142, title VII, §728, Oct. 28, 1991, 105 Stat. 914.
Pub. L. 101–506, title VI, §630, Nov. 5, 1990, 104 Stat. 1349.
Pub. L. 101–161, title VI, §630, Nov. 21, 1989, 103 Stat. 985.
Pub. L. 100–460, title VI, §630, Oct. 1, 1988, 102 Stat. 2262.
Validity of Section Affirmed
Act June 3, 1937, affirmed and validated, and reenacted without change the provisions of this section. See note set out under section 601 of this title.
§608e. Repealed. July 3, 1948, ch. 827, title III, §302(d), 62 Stat. 1258
Section, act May 12, 1933, ch. 25, title I, §8e, as added Aug. 24, 1935, ch. 641, §6, 49 Stat. 762; amended June 3, 1937, ch. 296, §1, 50 Stat. 246, related to determination of base period.
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective Jan. 1, 1950, see section 303 of act July 3, 1948 set out as an Effective Date of 1948 Amendment note under section 1301 of this title.
§608e–1. Import prohibitions on specified foreign produce
(a) Import prohibitions on tomatoes, avocados, limes, etc.
Subject to the provisions of subsections (c) and (d) and notwithstanding any other provision of law, whenever a marketing order issued by the Secretary of Agriculture pursuant to section 608c of this title contains any terms or conditions regulating the grade, size, quality, or maturity of tomatoes, raisins, olives (other than Spanish-style green olives), prunes, avocados, mangoes, limes, grapefruit, green peppers, Irish potatoes, cucumbers, oranges, onions, walnuts, cherries, pecans, dates, filberts, table grapes, eggplants, kiwifruit, nectarines, clementines, plums, pistachios, apples, or caneberries (including raspberries, blackberries, and loganberries) produced in the United States the importation into the United States of any such commodity, other than dates for processing, during the period of time such order is in effect shall be prohibited unless it complies with the grade, size, quality, and maturity provisions of such order or comparable restrictions promulgated hereunder: Provided, That this prohibition shall not apply to such commodities when shipped into continental United States from the Commonwealth of Puerto Rico or any Territory or possession of the United States where this chapter has force and effect: Provided further, That whenever two or more such marketing orders regulating the same agricultural commodity produced in different areas of the United States are concurrently in effect, the importation into the United States of any such commodity, other than dates for processing, shall be prohibited unless it complies with the grade, size, quality, and maturity provisions of the order which, as determined by the Secretary of Agriculture, regulates the commodity produced in the area with which the imported commodity is in most direct competition. Such prohibition shall not become effective until after the giving of such notice as the Secretary of Agriculture determines reasonable, which shall not be less than three days. In determining the amount of notice that is reasonable in the case of tomatoes the Secretary of Agriculture shall give due consideration to the time required for their transportation and entry into the United States after picking. Whenever the Secretary of Agriculture finds that the application of the restrictions under a marketing order to an imported commodity is not practicable because of variations in characteristics between the domestic and imported commodity he shall establish with respect to the imported commodity, other than dates for processing, such grade, size, quality, and maturity restrictions by varieties, types, or other classifications as he finds will be equivalent or comparable to those imposed upon the domestic commodity under such order. The Secretary of Agriculture may promulgate such rules and regulations as he deems necessary, to carry out the provisions of this section. Any person who violates any provision if 1 this section or of any rule, regulation, or order promulgated hereunder shall be subject to a forfeiture in the amount prescribed in section 608a(5) of this title or, upon conviction, a penalty in the amount prescribed in section 608c(14) of this title, or to both such forfeiture and penalty.
(b) Extension of time for marketing order; factors; review
(1) The Secretary may provide for a period of time (not to exceed 35 days) in addition to the period of time covered by a marketing order during which the marketing order requirements would be in effect for a particular commodity during any year if the Secretary determines that such additional period of time is necessary—
(A) to effectuate the purposes of this chapter; and
(B) to prevent the circumvention of the grade, size, quality, or maturity standards of a seasonal marketing order applicable to a commodity produced in the United States by imports of such commodity.
(2) In making the determination required by paragraph (1), the Secretary, through notice and comment procedures, shall consider—
(A) to what extent, during the previous year, imports of a commodity that did not meet the requirements of a marketing order applicable to such commodity were marketed in the United States during the period that such marketing order requirements were in effect for available domestic commodities (or would have been marketed during such time if not for any additional period established by the Secretary);
(B) if the importation into the United States of such commodity did, or was likely to, circumvent the grade, size, quality or maturity standards of a seasonal marketing order applicable to such commodity produced in the United States; and
(C) the availability and price of commodities of the variety covered by the marketing order during any additional period the marketing order requirements are to be in effect.
(3) An additional period established by the Secretary in accordance with this subsection shall be—
(A) announced not later than 30 days before the date such additional period is to be in effect; and
(B) reviewed by the Secretary on request, through notice and comment procedures, at least every 3 years in order to determine if the additional period is still needed to prevent circumvention of the seasonal marketing order by imported commodities.
(4) For the purposes of carrying out this subsection, the Secretary is authorized to make such reasonable inspections as may be necessary.
(c) Notification of United States Trade Representative of import restrictions; advisement of Secretary of Agriculture
Prior to any import prohibition or regulation under this section being made effective with respect to any commodity—
(1) the Secretary of Agriculture shall notify the United States Trade Representative of such import prohibition or regulation; and
(2) the United States Trade Representative shall advise the Secretary of Agriculture, within 60 days of the notification under paragraph (1), to ensure that the application of the grade, size, quality, and maturity provisions of the relevant marketing order, or comparable restrictions, to imports is not inconsistent with United States international obligations under any trade agreement, including the General Agreement on Tariffs and Trade.
(d) Proposed prohibition or regulation; authority of Secretary of Agriculture to proceed
The Secretary may proceed with the proposed prohibition or regulation if the Secretary receives the advice and concurrence of the United States Trade Representative within 60 days of the notification under subsection (c)(1).
(May 12, 1933, ch. 25, title I, §8e, as added Aug. 28, 1954, ch. 1041, title IV, §401(e), 68 Stat. 907; amended Aug. 31, 1954, ch. 1172, §3(a), 68 Stat. 1047; Pub. L. 87–128, title I, §141(5), Aug. 8, 1961, 75 Stat. 305; Pub. L. 91–670, title IV, §401, Jan. 11, 1971, 84 Stat. 2047; Pub. L. 95–113, title X, §1006, Sept. 29, 1977, 91 Stat. 951; Pub. L. 97–312, §2, Oct. 14, 1982, 96 Stat. 1461; Pub. L. 100–418, title IV, §4603, Aug. 23, 1988, 102 Stat. 1407; Pub. L. 101–624, title XIII, §§1307, 1308, Nov. 28, 1990, 104 Stat. 3561; Pub. L. 107–171, title X, §10601(b), May 13, 2002, 116 Stat. 511; Pub. L. 110–234, title X, §10102, May 22, 2008, 122 Stat. 1335; Pub. L. 110–246, §4(a), title X, §10102, June 18, 2008, 122 Stat. 1664, 2097; Pub. L. 115–334, title XII, §12503, Dec. 20, 2018, 132 Stat. 4987.)
Editorial Notes
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2018—Subsec. (a). Pub. L. 115–334 inserted "cherries, pecans," after "walnuts,".
2008—Subsec. (a). Pub. L. 110–246, §10102, inserted "clementines," after "nectarines," in first sentence.
2002—Subsec. (a). Pub. L. 107–171 substituted "apples, or caneberries (including raspberries, blackberries, and loganberries)" for "or apples" in first sentence.
1990—Subsec. (a). Pub. L. 101–624, §§1307, 1308(1), substituted "Subject to the provisions of subsections (c) and (d) of this section and notwithstanding any other provision of law," for "Notwithstanding any other provision of law," and "eggplants, kiwifruit, nectarines, plums, pistachios, or apples" for "or eggplants".
Subsecs. (c), (d). Pub. L. 101–624, §1308(2), added subsecs. (c) and (d).
1988—Pub. L. 100–418 designated existing provisions as subsec. (a) and added subsec. (b).
1982—Pub. L. 97–312 extended import prohibition to table grapes.
1977—Pub. L. 95–113 extended import prohibition to filberts.
1971—Pub. L. 91–670 extended import prohibition to raisins, olives (other than Spanish-style green olives), and prunes.
1961—Pub. L. 87–128 extended importation prohibition to oranges, onions, walnuts and dates, other than dates for processing.
1954—Act Aug. 31, 1954, made section applicable to mangoes.
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.
Effective Date of 1977 Amendment
Amendment by Pub. L. 95–113 effective Oct. 1, 1977, see section 1901 of Pub. L. 95–113, set out as a note under section 1307 of this title.
Effective Date of 1954 Amendment
Act Aug. 31, 1954, ch. 1172, §3(b), 68 Stat. 1047, provided that: "The amendment made by this section [amending this section] shall become effective upon the enactment of this Act [Aug. 31, 1954] or upon the enactment of the Agricultural Act of 1954 [Aug. 28, 1954], whichever occurs later."
1 So in original. Probably should be "of".
§608f. Repealed. Pub. L. 89–106, §9, Aug. 4, 1965, 79 Stat. 432
Section, act May 12, 1933, ch. 25, title I, §8f, formerly §8(5), 48 Stat. 34; renumbered §8f and amended Aug. 24, 1935, ch. 641, §7, 49 Stat. 762; Oct. 8, 1940, ch. 759, 54 Stat. 1019, prohibited, except in specified cases, the shipment of grain from public grain warehouses to other warehouse without cancellation of warehouse receipts to avoid conflict with other laws regulating warehousemen.
§609. Processing tax; methods of computation; rate; what constitutes processing; publicity as to tax to avoid profiteering
(a) To obtain revenue for extraordinary expenses incurred by reason of the national economic emergency, there shall be levied processing taxes as hereinafter provided. When the Secretary of Agriculture determines that any one or more payments authorized to be made under section 608 of this title are to be made with respect to any basic agricultural commodity, he shall proclaim such determination, and a processing tax shall be in effect with respect to such commodity from the beginning of the marketing year therefor next following the date of such proclamation; except that (1) in the case of sugar beets and sugarcane, the Secretary of Agriculture shall, on or before the thirtieth day after May 9, 1934, proclaim that rental or benefit payments with respect to said commodities are to be made, and the processing tax shall be in effect on and after the thirtieth day after May 9, 1934, and (2) in the case of rice, the Secretary of Agriculture shall, before April 1, 1935, proclaim that rental or benefit payments are to be made with respect thereto, and the processing tax shall be in effect on and after April 1, 1935. In the case of sugar beets and sugarcane, the calendar year shall be considered to be the marketing year and for the year 1934 the marketing year shall begin January 1, 1934. In the case of rice, the period from August 1 to July 31, both inclusive, shall be considered to be the marketing year. The processing tax shall be levied, assessed, and collected upon the first domestic processing of the commodity, whether of domestic production or imported, and shall be paid by the processor. The rate of tax shall conform to the requirements of subsection (b). Such rate shall be determined by the Secretary of Agriculture as of the date the tax first takes effect, and the rate so determined shall, at such intervals as the Secretary finds necessary to effectuate the declared policy, be adjusted by him to conform to such requirements. The processing tax shall terminate at the end of the marketing year current at the time the Secretary proclaims that all payments authorized under section 608 of this title which are in effect are to be discontinued with respect to such commodity. The marketing year for each commodity shall be ascertained and prescribed by regulations of the Secretary of Agriculture: Provided, That upon any article upon which a manufacturers' sales tax is levied under the authority of the Revenue Act of 1932 and which manufacturers' sales tax is computed on the basis of weight, such manufacturers' sales tax shall be computed on the basis of the weight of said finished article less the weight of the processed cotton contained therein on which a processing tax has been paid.
(b)(1) The processing tax shall be at such rate as equals the difference between the current average farm price for the commodity and the fair exchange value of the commodity, plus such percentage of such difference, not to exceed 20 per centum, as the Secretary of Agriculture may determine will result in the collection, in any marketing year with respect to which such rate of tax may be in effect pursuant to the provisions of this chapter, of an amount of tax equal to (A) the amount of credits or refunds which he estimates will be allowed or made during such period pursuant to section 615(c) of this title with respect to the commodity and (B) the amount of tax which he estimates would have been collected during such period upon all processings of such commodity, which are exempt from tax by reason of the fact that such processings are done by or for a State, or a political subdivision or an institution thereof, had such processings been subject to tax. If, prior to the time the tax takes effect, or at any time thereafter, the Secretary has reason to believe that the tax at such rate, or at the then existing rate, on the processing of the commodity generally or for any designated use or uses, or on the processing of the commodity in the production of any designated product or products thereof for any designated use or uses, will cause or is causing such reduction in the quantity of the commodity or products thereof domestically consumed as to result in the accumulation of surplus stocks of the commodity or products thereof or in the depression of the farm price of the commodity, then the Secretary shall cause an appropriate investigation to be made, and afford due notice and opportunity for hearing to interested parties. If thereupon the Secretary determines and proclaims that any such result will occur or is occurring, then the processing tax on the processing of the commodity generally or for any designated use or uses, or on the processing of the commodity in the production of any designated product or products thereof for any designated use or uses, shall be at such lower rate or rates as he determines and proclaims will prevent such accumulation of surplus stocks and depression of the farm price of the commodity, and the tax shall remain during its effective period at such lower rate until the Secretary, after due notice and opportunity for hearing to interested parties, determines and proclaims that an increase in the rate of such tax will not cause such accumulation of surplus stocks or depression of the farm price of the commodity. Thereafter the processing tax shall be at the highest rate which the Secretary determines will not cause such accumulation of surplus stocks or depression of the farm price of the commodity, but it shall not be higher than the rate provided in the first sentence of this paragraph.
(2) In the case of wheat, cotton, field corn, hogs, peanuts, paper, and jute, and (except as provided in paragraph (8) of this subsection) in the case of sugarcane and sugar beets, the tax on the first domestic processing of the commodity generally or for any particular use, or in the production of any designated product for any designated use, shall be levied, assessed, collected, and paid at the rate prescribed by the regulations of the Secretary of Agriculture in effect on August 24, 1935, during the period from such date to December 31, 1937, both dates inclusive.
(3) For the period from April 1, 1935, to July 31, 1936, both inclusive, the processing tax with respect to rice shall be levied, assessed, collected, and paid at the rate of 1 cent per pound of rough rice.
(4) For the period from September 1, 1935, to December 31, 1937, both inclusive, the processing tax with respect to rye shall be levied, assessed, collected, and paid at the rate of 30 cents per bushel of fifty-six pounds. In the case of rye, the first marketing year shall be considered to be the period commencing September 1, 1935, and ending June 30, 1936. Subsequent marketing years shall commence on July 1 and end on June 30 of the succeeding year. The provisions of section 616 of this title shall not apply in the case of rye.
(5) If at any time prior to December 31, 1937, a tax with respect to barley becomes effective pursuant to proclamation as provided in subsection (a) of this section, such tax shall be levied, assessed, collected, and paid during the period from the date upon which such tax becomes effective to December 31, 1937, both inclusive, at the rate of 25 cents per bushel of forty-eight pounds. The provisions of section 616 of this title shall not apply in the case of barley.
(6)(A) Any rate of tax which is prescribed in paragraphs (2) to (4), or (5) of this subsection or which is established pursuant to this paragraph on the processing of any commodity generally or for any designated use or uses, or on the processing of the commodity in the production of any designated product or products thereof for any designated use or uses, shall be decreased (including a decrease to zero) in accordance with the formulae, standards, and requirements of paragraph (1) of this subsection, in order to prevent such reduction in the quantity of such commodity or the products thereof domestically consumed as will result in the accumulation of surplus stocks of such commodity or the products thereof or in the depression of the farm price of the commodity, and shall thereafter be increased in accordance with the provisions of paragraph (1) of this subsection but subject to the provisions of subdivision (B) of this paragraph.
(B) If the average farm price of any commodity, the rate of tax on the processing of which is prescribed in paragraphs (2) to (4), or (5) of this subsection or is established pursuant to this paragraph, during any period of twelve successive months ending after July 1, 1935, consisting of the first ten months of any marketing year and the last two months of the preceding marketing year—
(i) is equal to, or exceeds by 10 per centum or less, the fair exchange value thereof 1 the rate of such tax shall (subject to the provisions of subdivision (A) of this paragraph) be adjusted, at the beginning of the next succeeding marketing year, to such rate as equals 20 per centum of the fair exchange value thereof.
(ii) exceeds by more than 10 per centum, but not more than 20 per centum, the fair exchange value thereof, the rate of such tax shall (subject to the provisions of subdivision (A) of this paragraph) be adjusted, at the beginning of the next succeeding marketing year, to such rate as equals 15 per centum of the fair exchange value thereof.
(iii) exceeds by more than 20 per centum the fair exchange value thereof, the rate of such tax shall (subject to the provisions of subdivision (A) of this paragraph) be adjusted, at the beginning of the next succeeding marketing year, to such rate as equals 10 per centum of the fair exchange value thereof.
(C) Any rate of tax which has been adjusted pursuant to this paragraph shall remain at such adjusted rate unless further adjusted or terminated pursuant to this paragraph, until December 31, 1937, or until July 31, 1936, in the case of rice.
(D) In accordance with the formulae, standards, and requirements prescribed in this chapter, any rate of tax prescribed in paragraphs (2) to (4) or (5) of this subsection or which is established pursuant to this paragraph shall be increased.
(E) Any tax, the rate of which is prescribed in paragraphs (2) to (4), or (5) of this subsection or which is established pursuant to this paragraph, shall terminate pursuant to proclamation as provided in subsection (a) or pursuant to section 613 of this title. Any such tax with respect to any basic commodity which terminates pursuant to proclamation as provided in subsection (a) shall again become effective at the rate prescribed in paragraphs (2) to (4), or (5) of this subsection, subject however to the provisions of subdivisions (A) and (B) of this paragraph, from the beginning of the marketing year for such commodity next following the date of a new proclamation by the Secretary as provided in subsection (a), if such marketing year begins prior to December 31, 1937, or prior to July 31, 1936, in the case of rice, and shall remain at such rate until altered or terminated pursuant to this section or terminated pursuant to section 613 of this title.
(F) After December 31, 1937 (in the case of the commodities specified in paragraphs (2), (4), and (5) of this subsection), and after July 31, 1936 (in the case of rice), rates of tax shall be determined by the Secretary of Agriculture in accordance with the formulae, standards, and requirements prescribed in this chapter but not in this paragraph, and shall, subject to such formulae, standards, and requirements, thereafter be effective.
(G) If the applicability to any person or circumstances of any tax, the rate of which is fixed in pursuance of this paragraph, is finally held invalid by reason of any provision of the Constitution, or is finally held invalid by reason of the Secretary of Agriculture's exercise or failure to exercise any power conferred on him under this chapter, there shall be levied, assessed, collected, and paid (in lieu of all rates of tax fixed in pursuance of this paragraph with respect to all tax liabilities incurred under this chapter on or after the effective date of each of the rates of tax fixed in pursuance of this paragraph), rates of tax fixed under paragraphs (2) to (4), or (5) of this subsection, and such rates shall be in effect (unless the particular tax is terminated pursuant to proclamation, as provided in subsection (a) or pursuant to section 613 of this title) until altered by Act of Congress; except that, for any period prior to the effective date of such holding of invalidity, the amount of tax which represents the difference between the tax at the rate fixed in pursuance of this paragraph (6) and the tax at the rate fixed under paragraphs (2) to (4), and (5) shall not be levied, assessed, collected or paid.
(7) In the case of rice, the weight to which the rate of tax shall be applied shall be the weight of rough rice when delivered to a processor, except that, where the producer processes his own rice, the weight to which the rate of tax shall be applied shall be the weight of rough rice when delivered to the place of processing.
(8) In the case of sugar beets or sugarcane the rate of tax shall be applied to the direct-consumption sugar, resulting from the first domestic processing, translated into terms of pounds of raw value according to regulations to be issued by the Secretary of Agriculture, and in the event that the Secretary increases or decreases the rate of tax fixed by paragraph (2) of this subsection, pursuant to the provisions of paragraph (6) of this subsection, then the rate of tax to be so applied shall be the higher of the two following quotients: The difference between the current average farm price and the fair exchange value (A) of a ton of sugar beets and (B) of a ton of sugarcane, divided in the case of each commodity by the average extraction therefrom of sugar in terms of pounds of raw value (which average extraction shall be determined from available statistics of the Department of Agriculture); the rate of tax fixed by paragraph (2) of this subsection or adjusted pursuant to the provisions of paragraph (6) of this subsection shall in no event exceed the amount of the reduction by the President on a pound of sugar raw value of the rate of duty in effect on January 1, 1934, under paragraph 501 of section 1001 2 of title 19, as adjusted to the treaty of commercial reciprocity concluded between the United States and the Republic of Cuba on December 11, 1902, and/or the provisions of sections 124 and 125 of title 19.
(9) In computing the current average farm price in the case of wheat, premiums paid producers for protein content shall not be taken into account.
(c) For the purposes of this chapter, the fair exchange value of a commodity shall be the price therefor that will give the commodity the same purchasing power, with respect to articles farmers buy, as such commodity had during the base period specified in section 602 of this title; and, in the case of all commodities where the base period is the prewar period, August 1909 to July 1914, will also reflect interest payments per acre on farm indebtedness secured by real estate and tax payments per acre on farm real estate, as contrasted with such interest payments and tax payments during said base period; and the current average farm price and the fair exchange value shall be ascertained by the Secretary of Agriculture from available statistics of the Department of Agriculture. The rate of tax upon the processing of any commodity in effect on August 24, 1935, shall not be affected by the adoption of this amendment and shall not be required to be adjusted or altered, unless the Secretary of Agriculture finds that it is necessary to adjust or alter any such rate pursuant to subsection (a).
(d) As used in this chapter—
(1) In case of wheat, rye, barley and corn, the term "processing" means the milling or other processing (except cleaning and drying) of wheat, rye, barley or corn for market, including custom milling for toll as well as commercial milling, but shall not include the grinding or cracking thereof not in the form of flour for feed purposes only.
(2) In case of cotton, the term "processing" means the spinning, manufacturing, or other processing (except ginning) of cotton; and the term "cotton" shall not include cotton linters.
(3) In case of tobacco, the term "processing" means the manufacturing or other processing (except drying or converting into insecticides and fertilizers) of tobacco.
(4) Repealed. June 26, 1934, ch. 759, §2(a), 48 Stat. 1242.
(5) Repealed. Aug. 24, 1935, ch. 641, §14(b), 49 Stat. 767.
(6) In the case of sugar beets and sugarcane—
(A) The term "first domestic processing" means each domestic processing, including each processing of successive domestic processings, of sugar beets, sugarcane, or raw sugar, which directly results in direct-consumption sugar.
(B) The term "sugar" means sugar in any form whatsoever, derived from sugar beets or sugarcane, whether raw sugar or direct-consumption sugar, including also edible molasses, sirups, and any mixture containing sugar (except blackstrap molasses and beet molasses).
(C) The term "blackstrap molasses" means the commercially so-designated "byproduct" of the cane-sugar industry, not used for human consumption or for the extraction of sugar.
(D) The term "beet molasses" means the commercially so-designated "byproduct" of the beet-sugar industry, not used for human consumption or for the extraction of sugar.
(E) The term "raw sugar" means any sugar, as defined above, manufactured or marketed in, or brought into, the United States, in any form whatsoever, for the purpose of being, or which shall be, further refined (or improved in quality, or further prepared for distribution or use).
(F) The term "direct-consumption sugar" means any sugar, as defined above, manufactured or marketed in, or brought into, the United States in any form whatsoever, for any purpose other than to be further refined (or improved in quality, or further prepared for distribution or use).
(G) The term "raw value" means a standard unit of sugar testing ninety-six sugar degrees by the polariscope. All taxes shall be imposed and all quotas shall be established in terms of "raw value" and for purposes of quota and tax measurements all sugar shall be translated into terms of "raw value" according to regulations to be issued by the Secretary, except that in the case of direct-consumption sugar produced in continental United States from sugar beets the raw value of such sugar shall be one and seven one-hundredths times the weight thereof.
(7) In the case of rice—
(A) The term "rough rice" means rice in that condition which is usual and customary when delivered by the producer to a processor.
(B) The term "processing" means the cleaning, shelling, milling (including custom milling for toll as well as commercial milling), grinding, rolling, or other processing (except grinding or cracking by or for the producer thereof for feed for his own livestock, cleaning by or directly for a producer for seed purposes, and drying) of rough rice; and in the case of rough rice with respect to which a tax-payment warrant has been previously issued or applied for by application then pending, the term "processing" means any one of the above mentioned processings or any preparation or handling in connection with the sale or other disposition thereof.
(C) The term "cooperating producer" means any person (including any share-tenant or share-cropper) whom the Secretary of Agriculture finds to be willing to participate in the 1935 production-adjustment program for rice.
(D) The term "processor", as used in subsection (b–1) of section 615 of this title, means any person (including a cooperative association of producers) engaged in the processing of rice on a commercial basis (including custom milling for toll as well as commercial milling).
(8) In the case of any other commodity, the term "processing" means any manufacturing or other processing involving a change in the form of the commodity or its preparation for distribution or use, as defined by regulations of the Secretary of Agriculture; and in prescribing such regulations the Secretary shall give due weight to the customs of the industry.
(e) When any processing tax, or increase or decrease therein, takes effect in respect of a commodity the Secretary of Agriculture, in order to prevent pyramiding of the processing tax and profiteering in the sale of the products derived from the commodity, shall make public such information as he deems necessary regarding (1) the relationship between the processing tax and the price paid to producers of the commodity, (2) the effect of the processing tax upon prices to consumers of products of the commodity, (3) the relationship, in previous periods, between prices paid to the producers of the commodity and prices to consumers of the products thereof, and (4) the situation in foreign countries relating to prices paid to producers of the commodity and prices to consumers of the products thereof.
(f) For the purposes of this chapter, processing shall be held to include manufacturing.
(g) Nothing contained in this chapter shall be construed to authorize any tax upon the processing of any commodity which processing results in the production of newsprint.
(May 12, 1933, ch. 25, title I, §9, 48 Stat. 35; Apr. 7, 1934, ch. 103, §3(a), 48 Stat. 528; May 9, 1934, ch. 263, §§2, 3, 5, 6, 9, 48 Stat. 670, 671, 675, 676; June 26, 1934, ch. 759, §2, 48 Stat. 1242; Mar. 18, 1935, ch. 32, §§1–6, 49 Stat. 45, 46; Aug. 24, 1935, ch. 641, §§11–15, 49 Stat. 762–767; Pub. L. 108–357, title VI, §611(d), Oct. 22, 2004, 118 Stat. 1522.)
Editorial Notes
References in Text
The Revenue Act of 1932, referred to in subsec. (a), is act June 6, 1932, ch. 209, 47 Stat. 169. For complete classification of the Act to the Code, see Tables.
Section 1001 of title 19, referred to in subsec. (b)(8), was repealed by Pub. L. 87–456, title I, §101(a), May 24, 1962, 76 Stat. 72. See Publication of Harmonized Tariff Schedule note set out under section 1202 of Title 19, Customs Duties.
The treaty of commercial reciprocity concluded between the United States and Cuba on December 11, 1902, referred to in subsec. (b)(8), was terminated Aug. 21, 1963, pursuant to notice given by the United States on Aug. 21, 1962. See, Bevans, Treaties and Other International Agreements of the United States of America, 1776–1949, vol. VI, page 1106.
Sections 124 and 125 of title 19, referred to in subsec. (b)(8), have been omitted from the Code.
Phrase "this amendment" in subsec. (c) refers to amendments by act Aug. 24, 1935.
Amendments
2004—Subsec. (b)(2). Pub. L. 108–357, §611(d)(1), struck out "tobacco," after "peanuts,".
Subsec. (b)(6)(B)(i). Pub. L. 108–357, §611(d)(2), struck out ", or, in the case of tobacco, is less than the fair exchange value by not more than 10 per centum," before "the rate of such tax".
1935—Subsec. (a). Act Aug. 24, 1935, §11, struck out second sentence preceding semicolon and inserted in lieu thereof "When the Secretary of Agriculture determines that any one or more payments authorized to be made under section 608 of this title are to be made with respect to any basic agricultural commodity, he shall proclaim such determination, and a processing tax shall be in effect with respect to such commodity from the beginning of the marketing year therefor next following the date of such proclamation."
Act Mar. 18, 1935, §§1, 2, struck out comma after "except that" in second sentence and inserted in lieu thereof "(i)", and inserted "and (2) in the case of rice, the Secretary of Agriculture shall, before April 1, 1935, proclaim that rental or benefit payments are to be made with respect thereto, and the processing tax shall be in effect on and after April 1, 1935".
Subsec. (b). Act Aug. 24, 1935, §12, amended subsec. (b) generally.
Act Mar. 18, 1935, §§3, 4, among other changes inserted "In the case of rice, the weight to which the rate of tax shall be applied shall be the weight of rough rice when delivered to a processor, except that where the producer processes his own rice, the weight to which the rate of tax shall be applied shall be the weight of rough rice when delivered to the place of processing."
Subsec. (c). Act Aug. 24, 1935, §13, among other changes inserted "The rate of tax upon the processing of any commodity, in effect on August 24, 1935, shall not be affected by the adoption of this amendment and shall not be required to be adjusted or altered, unless the Secretary of Agriculture finds that it is necessary to adjust or alter any such rate pursuant to subsection (a) of this section."
Subsec. (d). Act Aug. 24, 1935, §14, inserted ", rye, barley" after "wheat" wherever appearing and struck out par. (5).
Act Mar. 18, 1935, §§5, 6, struck out ", rice," in two places in par. (1), added par. (7), and renumbered former par. (7) as (8).
Subsec. (g). Act Aug. 24, 1935, §15, added subsec. (g).
1934—Subsec. (a). Act May 9, 1934, §9, struck out the period after "proclamation" and inserted in lieu thereof "; except that, in the case of sugar beets and sugarcane, the Secretary of Agriculture shall, on or before the thirtieth day after May 9, 1934, proclaim that rental or benefit payments with respect to said commodities are to be made, and the processing tax shall be in effect on and after the thirtieth day after May 9, 1934. In the case of sugar beets and sugarcane, the calendar year shall be considered to be the marketing year and for the year 1934 the marketing year shall begin January 1, 1934."
Subsec. (b). Act May 9, 1934, §3, among other changes amended first two sentences and inserted "In the case of sugar beets or sugarcane the rate of tax shall be applied to the direct-consumption sugar, resulting from the first domestic processing, translated into terms of pounds of raw value according to regulations to be issued by the Secretary of Agriculture, and the rate of tax to be so applied shall be the higher of the two following quotients: The difference between the current average farm price and the fair exchange value (1) of a ton of sugar beets and (2) of a ton of sugarcane, divided in the case of each commodity by the average extraction therefrom of sugar in terms of pounds of raw value (which average extraction shall be determined from available statistics of the Department of Agriculture); except that such rate shall not exceed the amount of the reduction by the President on a pound of sugar raw value of the rate of duty in effect on January 1, 1934, under paragraph 501 of section 1001 of Title 19, as adjusted to the treaty of commercial reciprocity concluded between the United States and the Republic of Cuba on December 11, 1902, and/or the provisions of sections 124 and 125 of Title 19."
Subsec. (d). Act June 26, 1934, §2(a), struck out par. (4).
Act June 26, 1934, §2(b), amended par. (7).
Act May 9, 1934, §§2, 5, amended par. (6) generally and renumbered former par. (6) as (7).
Act Apr. 7, 1934, added par. (5) and renumbered former par. (5) as (6).
Subsec. (f). Act May 9, 1934, §6, added subsec. (f).
Statutory Notes and Related Subsidiaries
Effective Date of 2004 Amendment
Amendment by Pub. L. 108–357 applicable to the 2005 and subsequent crops of tobacco, see section 643 of Pub. L. 108–357, set out as an Effective Date note under section 518 of this title.
Savings Provision
Amendment by sections 611 to 614 of Pub. L. 108–357 not to affect the liability of any person under any provision of law so amended with respect to the 2004 or an earlier crop of tobacco, see section 614 of Pub. L. 108–357, set out as a note under section 515 of this title.
Unconstitutionality
This section may be obsolete in view of the Supreme Court's holding that the processing and floor stock taxes provided for by the Agricultural Adjustment Act of 1933 are unconstitutional. See U.S. v. Butler, Mass. 1936, 56 S.Ct. 312, 297 U.S. 1, 80 L.Ed. 477, 102 A.L.R. 914.
Separability
Validity of remainder of this chapter as not affected should any of those provisions be declared unconstitutional, see section 614 of this title.
1 So in original. Probably should be followed by a comma.
2 See References in Text note below.
§610. Administration
(a) Appointment of officers and employees; impounding appropriations
The Secretary of Agriculture may appoint such officers and employees, subject to the provisions of chapter 51 and subchapter III of chapter 53 of title 5, and such experts, as are necessary to execute the functions vested in him by this chapter: Provided, That the Secretary shall establish the Agricultural Adjustment Administration in the Department of Agriculture for the administration of the functions vested in him by this chapter: And provided further, That the State Administrator appointed to administer this chapter in each State shall be appointed by the President, by and with the advice and consent of the Senate. Section 8 of Title II of the Act entitled "An Act to maintain the credit of the United States Government," approved March 20, 1933, to the extent that it provides for the impoundment of appropriations on account of reductions in compensation, shall not operate to require such impoundment under appropriations contained in this chapter.
(b) State and local committees or associations of producers; handlers' share of expenses of authority or agency
(1) The Secretary of Agriculture is authorized to establish, for the more effective administration of the functions vested in him by this chapter, State and local committees, or associations of producers, and to permit cooperative associations of producers, when in his judgment they are qualified to do so, to act as agents of their members and patrons in connection with the distribution of payments authorized to be made under section 608 of this title. The Secretary, in the administration of this chapter, shall accord such recognition and encouragement to producer-owned and producer-controlled cooperative associations as will be in harmony with the policy toward cooperative associations set forth in existing Acts of Congress, and as will tend to promote efficient methods of marketing and distribution.
(2)(i) Each order relating to milk and its products issued by the Secretary under this chapter shall provide that each handler subject thereto shall pay to any authority or agency established under such order such handler's pro rata share (as approved by the Secretary) of such expenses as the Secretary may find will necessarily be incurred by such authority or agency, during any period specified by him, for the maintenance and functioning of such authority or agency, other than expenses incurred in receiving, handling, holding, or disposing of any quantity of milk or products thereof received, handled, held, or disposed of by such authority or agency for the benefit or account of persons other than handlers subject to such order. The pro rata share of the expenses payable by a cooperative association of producers shall be computed on the basis of the quantity of milk or product thereof covered by such order which is distributed, processed, or shipped by such cooperative association of producers.
(ii) Each order relating to any other commodity or product issued by the Secretary under this chapter shall provide that each handler subject thereto shall pay to any authority or agency established under such order such handler's pro rata share (as approved by the Secretary) of such expenses as the Secretary may find are reasonable and are likely to be incurred by such authority or agency, during any period specified by him, for such purposes as the Secretary may, pursuant to such order, determine to be appropriate, and for the maintenance and functioning of such authority or agency, other than expenses incurred in receiving, handling, holding, or disposing of any quantity of a commodity received, handled, held, or disposed of by such authority or agency for the benefit or account of persons other than handlers subject to such order. The pro rata share of the expenses payable by a cooperative association of producers shall be computed on the basis of the quantity of the agricultural commodity or product thereof covered by such order which is distributed, processed, or shipped by such cooperative association of producers. The payment of assessments for the maintenance and functioning of such authority or agency, as provided for herein, may be required under a marketing agreement or marketing order throughout the period the marketing agreement or order is in effect and irrespective of whether particular provisions thereof are suspended or become inoperative.
(iii) Any authority or agency established under an order may maintain in its own name, or in the name of its members, a suit against any handler subject to an order for the collection of such handler's pro rata share of expenses. The several district courts of the United States are vested with jurisdiction to entertain such suits regardless of the amount in controversy.
(c) Regulations; penalty for violation
The Secretary of Agriculture is authorized, with the approval of the President, to make such regulations with the force and effect of law as may be necessary to carry out the powers vested in him by this chapter. Any violation of any regulation shall be subject to such penalty, not in excess of $100, as may be provided therein.
(d) Regulations of Secretary of the Treasury
The Secretary of the Treasury is authorized to make such regulations as may be necessary to carry out the powers vested in him by this chapter.
(e) Review of official acts
The action of any officer, employee, or agent in determining the amount of and in making any payment authorized to be made under section 608 of this title shall not be subject to review by any officer of the Government other than the Secretary of Agriculture or Secretary of the Treasury.
(f) Geographical application
The provisions of this chapter shall be applicable to the United States and its possessions, except the Virgin Islands, American Samoa, the Canal Zone, and the island of Guam; except that, in the case of sugar beets and sugarcane, the President, if he finds it necessary in order to effectuate the declared policy of this chapter, is authorized by proclamation to make the provisions of this chapter applicable to the Virgin Islands, American Samoa, the Canal Zone, and/or the island of Guam.
(g) Officers; dealing or speculating in agricultural products; penalties
No person shall, while acting in any official capacity in the administration of this chapter, speculate, directly or indirectly, in any agricultural commodity or product thereof to which this chapter applies, or in contracts relating thereto, or in the stock or membership interest of any association or corporation engaged in handling, processing, or disposing of any such commodity or product. Any person violating this subsection shall upon conviction thereof be fined not more than $10,000 or imprisoned not more than two years, or both.
(h) Adoption of Federal Trade Commission Act; hearings; report of violations to Attorney General
For the efficient administration of the provisions of this chapter, the provisions, including penalties, of sections 48, 49, and 50 of title 15, are made applicable to the jurisdiction, powers, and duties of the Secretary in administering the provisions of this chapter, and to any person subject to the provisions of this chapter, whether or not a corporation. Hearings authorized or required under this chapter shall be conducted by the Secretary of Agriculture or such officer or employee of the Department as he may designate for the purpose. The Secretary may report any violation of any agreement entered into under this chapter, to the Attorney General of the United States, who shall cause appropriate proceedings to enforce such agreement to be commenced and prosecuted in the proper courts of the United States without delay.
(i) Cooperation with State authorities; imparting information
The Secretary of Agriculture upon the request of the duly constituted authorities of any State is directed, in order to effectuate the declared policy of this chapter and in order to obtain uniformity in the formulation, administration, and enforcement of Federal and State programs relating to the regulation of the handling of agricultural commodities or products thereof, to confer with and hold joint hearings with the duly constituted authorities of any State, and is authorized to cooperate with such authorities; to accept and utilize, with the consent of the State, such State and local officers and employees as may be necessary; to avail himself of the records and facilities of such authorities; to issue orders (subject to the provisions of section 608c of this title) complementary to orders or other regulations issued by such authorities; and to make available to such State authorities the records and facilities of the Department of Agriculture: Provided, That information furnished to the Secretary of Agriculture pursuant to section 608d(1) of this title shall be made available only to the extent that such information is relevant to transactions within the regulatory jurisdiction of such authorities, and then only upon a written agreement by such authorities that the information so furnished shall be kept confidential by them in a manner similar to that required of Federal officers and employees under the provisions of section 608d(2) of this title.
(j) Definitions
The term "interstate or foreign commerce" means commerce between any State, Territory, or possession, or the District of Columbia, and any place outside thereof; or between points within the same State, Territory, or possession, or the District of Columbia, but through any place outside thereof; or within any Territory or possession, or the District of Columbia. For the purpose of this chapter (but in nowise limiting the foregoing definition) a marketing transaction in respect to an agricultural commodity or the product thereof shall be considered in interstate or foreign commerce if such commodity or product is part of that current of interstate or foreign commerce usual in the handling of the commodity or product whereby they, or either of them, are sent from one State to end their transit, after purchase, in another, including all cases where purchase or sale is either for shipment to another State or for the processing within the State and the shipment outside the State of the products so processed. Agricultural commodities or products thereof normally in such current of interstate or foreign commerce shall not be considered out of such current through resort being had to any means or device intended to remove transactions in respect thereto from the provisions of said sections. As used herein, the word "State" includes Territory, the District of Columbia, possession of the United States, and foreign nations.
(May 12, 1933, ch. 25, title I, §10, 48 Stat. 37; June 16, 1933, ch. 98, title VIII, §86, 48 Stat. 273; May 9, 1934, ch. 263, §7, 48 Stat. 675; Aug. 24, 1935, ch. 641, §§16–18, 49 Stat. 767; Aug. 26, 1935, ch. 685, 49 Stat. 801; June 22, 1936, ch. 690, §601(a), 49 Stat. 1739; June 3, 1937, ch. 296, §§1, 2(g)–(i), 50 Stat. 246, 248; Proc. No. 2695, eff. July 4, 1946, 11 F.R. 7817, 60 Stat. 1352; Aug. 1, 1947, ch. 425, §3, 61 Stat. 709; Oct. 28, 1949, ch. 782, title XI, §1106(a), 63 Stat. 972.)
Editorial Notes
References in Text
Section 8 of title II of the Act entitled "An Act to maintain the credit of the United States Government,", referred to in subsec. (a), means act Mar. 20, 1933, ch. 3, title II, §8, 48 Stat. 15, which is not classified to the Code.
For definition of Canal Zone, referred to in subsec. (f), see section 3602(b) of Title 22, Foreign Relations and Intercourse.
Codification
In subsec. (a), "chapter 51 and subchapter III of chapter 53 of title 5" substituted for "the Classification Act of 1949" on authority of Pub. L. 89–554, §7(b), Sept. 6, 1966, 80 Stat. 631, the first section of which enacted Title 5, Government Organization and Employees.
Provisions of subsec. (a), which authorized appointment of officers and employees without regard to the civil-service laws and regulations and which limited the maximum salary payable to any officer or employee to not more than $10,000 per annum, were omitted from the Code as obsolete and superseded. Such appointments are now subject to the civil service laws unless specifically excepted by those laws or by laws enacted subsequent to Executive Order 8743, Apr. 23, 1941, issued by the President pursuant to act Nov. 26, 1940, ch. 919, title I, §1, 54 Stat. 1211, which covered most excepted positions into the classified (competitive) civil service. The Order is set out as a note under section 3301 of Title 5.
The salary limitation was superseded by the Classification Act of 1949.
References to the Philippine Islands in subsec. (f) of this section were omitted from the Code as obsolete in view of the independence of the Philippine Islands, proclaimed by the President of the United States in Proc. No. 2695, which is set out as a note under section 1394 of Title 22, Foreign Relations and Intercourse.
Amendments
1949—Subsec. (a). Act Oct. 28, 1949, substituted "Classification Act of 1949" for "Classification Act of 1923".
1947—Subsec. (b)(2). Act Aug. 1, 1947, among other changes inserted subpar. (i), designated former first and second sentences of subsection as subpar. (ii) and inserted last sentence relating to the payment of assessments for the maintenance and functioning of such authority thereto, and designated former third and fourth sentences of subsection as subpar. (iii).
1937—Subsec. (c). Act June 3, 1937, §2(g), struck out last clause of first sentence which related to regulations establishing conversion factors for any commodity and article processed therefrom to determine the amount of tax imposed or refunds to be made with respect thereto.
Subsec. (f). Act June 3, 1937, §2(b), struck out sentence which authorized the President to attach by executive order any or all possessions to any internal-revenue district for the purpose of carrying out provisions with respect to the collection of taxes.
Subsec. (j). Act June 3, 1937, §2(i), added subsec. (j).
1936—Subsec. (d). Act June 22, 1936, reenacted subsec. (d) for refund purposes.
1935—Subsec. (b). Act Aug. 24, 1935, §16, among other changes inserted "The Secretary, in the administration of this chapter, shall accord such recognition and encouragement to producer-owned and producer-controlled cooperative associations as will be in harmony with the policy toward cooperative associations set forth in existing Acts of Congress, and as will tend to promote efficient methods of marketing and distribution.
"(2) Each order issued by the Secretary under this chapter shall provide that each handler subject thereto shall pay to any authority or agency established under such order such handler's pro rata share (as approved by the Secretary) of such expenses as the Secretary may find will necessarily be incurred by such authority or agency, during any period specified by him, for the maintenance and functioning of such authority or agency, other than expenses incurred in receiving, handling, holding, or disposing of any quantity of a commodity received, handled, held, or disposed of by such authority or agency for the benefit or account of persons other than handlers subject to such order. The pro rata share of the expenses payable by a cooperative association of producers shall be computed on the basis of the quantity of the agricultural commodity or product thereof covered by such order which is distributed, processed, or shipped by such cooperative association of producers. Any such authority or agency may maintain in its own name, or in the names of its members, a suit against any handler subject to an order for the collection of such handler's pro rata share of expenses. The several District Courts of the United States are hereby vested with jurisdiction to entertain such suits regardless of the amount in controversy."
Subsec. (e). Act Aug. 24, 1935, §17, struck out "rental or benefit payment" and inserted in lieu thereof "payment authorized to be made under section 8".
Subsec. (f). Act Aug. 26, 1935, inserted sentence authorizing the President to attach by executive order any or all possessions to any internal-revenue district for the purpose of carrying out provisions with respect to the collection of taxes.
Subsec. (i). Act Aug. 24, 1935, §18, added subsec. (i).
1934—Subsec. (f). Act May 9, 1934, inserted exception provision.
1933—Subsec. (a). Act June 16, 1933, inserted "And provided further, That the State Administrator appointed to administer this chapter in each State shall be appointed by the President, by and with the advice and consent of the Senate" at end of first sentence.
Statutory Notes and Related Subsidiaries
Repeals
Act Oct. 28, 1949, ch. 782, cited as a credit to this section, was repealed (subject to a savings clause) by Pub. L. 89–554, Sept. 6, 1966, §8, 80 Stat. 632, 655.
Validity of Section Affirmed
Act June 3, 1937, §1, affirmed, validated, and reenacted without change the provisions of subsecs. (a), (b) (2), (c), and (f) to (i) of this section, except for the amendments to subsecs. (c) and (f) by section 2 of the act. See note set out under section 601 of this title.
Appropriations for Refunds and Payments of Processing and Related Taxes and Limitations Thereon
Acts June 25, 1938, ch. 681, 52 Stat. 1150; May 6, 1939, ch. 115, §1, 53 Stat. 661, 662; Feb. 12, 1940, ch. 28, §1, 54 Stat. 36; Mar. 25, 1940, ch. 71, title I, 54 Stat. 61; May 31, 1941, ch. 156, title I, §1, 55 Stat. 218; Mar. 10, 1942, ch. 178, title I, §1, 56 Stat. 156; June 30, 1943, ch. 179, title I, 57 Stat. 257; Apr. 22, 1944, ch. 175, title I, §1, 58 Stat. 201; Apr. 24, 1945, ch. 92, title I, 59 Stat. 62; July 20, 1946, ch. 588, title I, 60 Stat. 574.
Executive Documents
Transfer of Functions
Functions of all officers, agencies, and employees of Department of Agriculture transferred, with certain exceptions, to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title.
Executive and administrative functions of Federal Trade Commission, with certain reservations, transferred to Chairman of Commission by 1950 Reorg. Plan No. 8, §1, eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1264, set out in the Appendix to Title 5, Government Organization and Employees.
1946 Reorg. Plan No. 3, §501, eff. July 16, 1946, 11 F.R. 7877, 60 Stat. 1100, set out in the Appendix to Title 5, transferred functions of Agricultural Adjustment Administration to Secretary of Agriculture. In his letter to Congress, the President stated that purpose of this transfer was to permit Secretary of Agriculture to continue consolidation already effected in Production and Marketing Administration. By temporary Executive Orders 9069 and 9577, and Ex. Ord. No. 9280, Dec. 5, 1942, 7 F.R. 10, 179, and Ex. Ord. No. 9322, Mar. 26, 1943, 8 F.R. 3807, as amended by Ex. Ord. No. 9334, Apr. 19, 1943, 8 F.R. 5423, the Agricultural Adjustment Administration had been successively consolidated into Agricultural Conservation and Adjustment Administration, Food Production Administration, and War Food Administration, which was terminated and its functions transferred to Secretary of Agriculture by said Ex. Ord. 9577. Secretary of Agriculture consolidated functions of Agricultural Adjustment Administration into Production and Marketing Administration by Memorandum 1118, Aug. 18, 1945.
Ex. Ord. No. 10199. Regulations Without Approval of President
Ex. Ord. No. 10199, Dec. 21, 1950, 15 F.R. 9217, provided:
By virtue of the authority vested in me by the act of August 8, 1950, Public Law 673, 81st Congress [sections 301 to 303 of Title 3] I hereby authorize the Secretary of Agriculture to make without the approval of the President such regulations with the force and effect of law as may be necessary to carry out the powers vested in him by the Agricultural Marketing Agreement Act of 1937, as amended [this chapter].
Harry S Truman.
§611. "Basic agricultural commodity" defined; exclusion of commodities
As used in this chapter, the term "basic agricultural commodity" means wheat, rye, flax, barley, cotton, field corn, grain sorghums, hogs, cattle, rice, potatoes, tobacco, sugar beets and sugarcane, peanuts, and milk and its products, and any regional or market classification, type, or grade thereof; but the Secretary of Agriculture shall exclude from the operation of the provisions of this chapter, during any period, any such commodity or classification, type, or grade thereof if he finds, upon investigation at any time and after due notice and opportunity for hearing to interested parties, that the conditions of production, marketing, and consumption are such that during such period this chapter can not be effectively administered to the end of effectuating the declared policy with respect to such commodity or classification, type, or grade thereof. As used in this chapter, the term "potatoes" means all varieties of potatoes included in the species Solanum tuberosum.
(May 12, 1933, ch. 25, title I, §11, 48 Stat. 38; Apr. 7, 1934, ch. 103, §§1, 3(b), 4, 5, 48 Stat. 528; May 9, 1934, ch. 263, §1, 48 Stat. 670; Aug. 24, 1935, ch. 641, §61, 49 Stat. 782.)
Editorial Notes
Amendments
1935—Act Aug. 24, 1935, inserted ", potatoes" after "rice" and last sentence defining potatoes.
1934—Act May 9, 1934, inserted ", sugar beets and sugarcane" after "tobacco".
Act Apr. 7, 1934, inserted ", cattle" after "hogs", ", peanuts" after "tobacco", ", rye, flax, barley" after "wheat", and ", grain sorghums" after "field corn".
§612. Appropriation; use of revenues; administrative expenses
(a) There is appropriated, out of any money in the Treasury not otherwise appropriated, the sum of $100,000,000 to be available to the Secretary of Agriculture for administrative expenses under this chapter, and for payments authorized to be made under section 608 of this title. Such sum shall remain available until expended.
To enable the Secretary of Agriculture to finance under such terms and conditions as he may prescribe, surplus reductions with respect to the dairy- and beef-cattle industries, and to carry out any of the purposes described in subsections (a) and (b) of this section and to support and balance the markets for the dairy and beef cattle industries, there is authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, the sum of $200,000,000: Provided, That not more than 60 per centum of such amount shall be used for either of such industries.
(b) In addition to the foregoing, for the purpose of effectuating the declared policy of this chapter, a sum equal to the proceeds derived from all taxes imposed under this chapter is appropriated to be available to the Secretary of Agriculture for (1) the acquisition of any agricultural commodity pledged as security for any loan made by any Federal agency, which loan was conditioned upon the borrower agreeing or having agreed to cooperate with a program of production adjustment or marketing adjustment adopted under the authority of this chapter, and (2) the following purposes under this chapter: Administrative expenses, payments authorized to be made under section 608 of this title, and refunds on taxes. The Secretary of Agriculture and the Secretary of the Treasury shall jointly estimate from time to time the amounts, in addition to any money available under subsection (a), currently required for such purposes; and the Secretary of the Treasury shall, out of any money in the Treasury not otherwise appropriated, advance to the Secretary of Agriculture the amounts so estimated. The amount of any such advance shall be deducted from such tax proceeds as shall subsequently become available under this subsection.
(c) The administrative expenses provided for under this section shall include, among others, expenditures for personal services and rent in the District of Columbia and elsewhere, for law books and books of reference, for contract stenographic reporting services, and for printing and paper in addition to allotments under the existing law. The Secretary of Agriculture shall transfer to the Treasury Department, and is authorized to transfer to other agencies, out of funds available for administrative expenses under this chapter, such sums as are required to pay administrative expenses incurred and refunds made by such department or agencies in the administration of this chapter.
(May 12, 1933, ch. 25, title I, §12, 48 Stat. 38; Apr. 7, 1934, ch. 103, §2, 48 Stat. 528; Aug. 24, 1935, ch. 641, §§3, 19, 49 Stat. 753, 768; June 3, 1937, ch. 296, §§1, 2(j), 50 Stat. 246, 248.)
Editorial Notes
Amendments
1937—Subsec. (a). Act June 3, 1937, §2(j), struck out "and production adjustments" after "surplus reductions" in second par.
1935—Subsec. (a). Act Aug. 24, 1935, §19, substituted "payments authorized to be made under section 608" for "rental and benefit payments made with respect to reduction in acreage or reduction in production for market under part 2 of this title".
Subsec. (b). Act Aug. 24, 1935, §3, amended subsec. (b) generally.
1934—Subsec. (a). Act Apr. 7, 1934, added second par.
Statutory Notes and Related Subsidiaries
Validity of Section Affirmed
Act June 3, 1937, §1, affirmed and validated, and reenacted without change the provisions of subsecs. (a) and (c) of this section, except for the amendment to subsec. (a) by section 2 of the act. See note set out under section 601 of this title.
Settlement of Certain Claims and Accounts
Act June 5, 1942, ch. 349, §§2, 3, 56 Stat. 324, authorized Comptroller General to relieve disbursing and certifying officers from liability for payments made prior to January 6, 1936, under Agricultural Adjustment Act of 1933 or amendments thereto [this chapter] or under the appropriation "Payments for Agricultural Adjustment" in act Feb. 11, 1936, ch. 49, 49 Stat. 1116, upon certificate of Secretary of Agriculture that such payments were made in good faith, and also provided that no action should be taken to recover such excess payments, if the Secretary of Agriculture should further certify that in view of the good faith of the parties or other circumstances of the case, such attempt to recover them would be inadvisable or inequitable.
Executive Documents
Ex. Ord. No. 10914. Expanded Program of Food Distribution to Needy Families
Ex. Ord. No. 10914, Jan. 21, 1961, 26 F.R. 639, provided:
Whereas one of the most important and urgent problems confronting this Nation today is the development of a positive food and nutrition program for all Americans;
Whereas I have received the report of the Task Force on Area Redevelopment under the chairmanship of Senator Douglas, in which special emphasis is placed upon the need for additional food to supplement the diets of needy persons in areas of chronic unemployment;
Whereas I am also advised that there are now almost 7 million persons receiving some form of public assistance, that 4.5 million persons are reported as being unemployed and that a substantial number of needy persons are not recipients in the present food distribution program;
Whereas the variety of foods currently being made available is limited and its nutritional content inadequate; and
Whereas despite an abundance of food, farm income has been in a period of decline, and a strengthening of farm prices is desirable.
NOW, THEREFORE, by virtue of the authority vested in me as President of the United States, it is ordered as follows:
The Secretary of Agriculture shall take immediate steps to expand and improve the program of food distribution throughout the United States, utilizing funds and existing statutory authority available to him, including section 32 of the Act of August 24, 1935, as amended (7 U.S.C. 612) [this section], so as to make available for distribution, through appropriate State and local agencies, to all needy families a greater variety and quantity of food out of our agricultural abundance.
John F. Kennedy.
§§612a, 612b. Omitted
Editorial Notes
Codification
Section 612a, act Apr. 7, 1934, ch. 103, §6, 48 Stat. 528; 1940 Reorg. Plan No. III, §5, 5 F.R. 2108, 54 Stat. 1232, authorized appropriation of $50,000,000 for purpose of dairy and beef products for distribution for relief purposes, and for elimination of diseased cattle.
Section 612b, act Aug. 24, 1935, ch. 641, §37, 49 Stat. 775, provided appropriations for elimination of disease in dairy and beef cattle to remain available until June 30, 1936.
§612c. Appropriation to encourage exportation and domestic consumption of agricultural products
There is appropriated for each fiscal year beginning with the fiscal year ending June 30, 1936 an amount equal to 30 per centum of the gross receipts from duties collected under the customs laws during the period January 1 to December 31, both inclusive, preceding the beginning of each such fiscal year. Such sums shall be maintained in a separate fund and shall be used by the Secretary of Agriculture only to (1) encourage the exportation of agricultural commodities and products thereof by the payment of benefits in connection with the exportation thereof or of indemnities for losses incurred in connection with such exportation or by payments to producers in connection with the production of that part of any agricultural commodity required for domestic consumption; (2) encourage the domestic consumption of such commodities or products by diverting them, by the payment of benefits or indemnities or by other means, from the normal channels of trade and commerce or by increasing their utilization through benefits, indemnities, donations or by other means, among persons in low income groups as determined by the Secretary of Agriculture; and (3) reestablish farmers' purchasing power by making payments in connection with the normal production of any agricultural commodity for domestic consumption. Determinations by the Secretary as to what constitutes diversion and what constitutes normal channels of trade and commerce and what constitutes normal production for domestic consumption shall be final. The sums appropriated under this section shall be expended for such one or more of the above-specified purposes, and at such times, in such manner, and in such amounts as the Secretary of Agriculture finds will effectuate substantial accomplishment of any one or more of the purposes of this section. Notwithstanding any other provision of this section, the amount that may be devoted, during any fiscal year after June 30, 1939, to any one agricultural commodity or the products thereof in such fiscal year, shall not exceed 25 per centum of the funds available under this section for such fiscal year. The sums appropriated under this section shall be devoted principally to perishable nonbasic agricultural commodities (other than those receiving price support under section 1446 of this title) and their products. The sums appropriated under this section shall, notwithstanding the provisions of any other law, continue to remain available for the purposes of this section until expended; but any excess of the amount remaining unexpended at the end of any fiscal year over $500,000,000 shall, in the same manner as though it had been appropriated for the service of such fiscal year, be subject to the provisions of section 3690 1 of the Revised Statutes, and section 5 1 of the Act entitled "An Act making appropriations for the legislative, executive, and judicial expenses of the Government for the year ending June thirtieth, eighteen hundred and seventy-five, and for other purposes". A public or private nonprofit organization that receives agricultural commodities or the products thereof under clause (2) of the second sentence may transfer such commodities or products to another public or private nonprofit organization that agrees to use such commodities or products to provide, without cost or waste, nutrition assistance to individuals in low-income groups.
(Aug. 24, 1935, ch. 641, §32, 49 Stat. 774; Feb. 29, 1936, ch. 104, §2, 49 Stat. 1151; Feb. 16, 1938, ch. 30, title II, §203, 52 Stat. 38; June 30, 1939, ch. 253, title I, 53 Stat. 975; July 3, 1948, ch. 827, title III, §301, 62 Stat. 1257; Oct. 31, 1949, ch. 792, title IV, §411, 63 Stat. 1057; Jan. 30, 1954, ch. 2, §5(b), 68 Stat. 7; Pub. L. 99–198, title XV, §1561, Dec. 23, 1985, 99 Stat. 1589; Pub. L. 107–171, title X, §10602, May 13, 2002, 116 Stat. 511.)
Editorial Notes
References in Text
Section 3690 of the Revised Statutes, and section 5 of act June 30, 1875, referred to in text, which were classified to sections 712 and 713 of former Title 31, Money and Finance, were repealed by act July 6, 1949, ch. 299, §3, 63 Stat. 407.
Codification
Section was not enacted as part of the Agricultural Adjustment Act which comprises this chapter.
Amendments
2002—Pub. L. 107–171, which directed amendment of second undesignated par. by substituting "$500,000,000" for "$300,000,000", was executed by making the substitution in text to reflect the probable intent of Congress, because section does not contain a second undesignated par.
1985—Pub. L. 99–198 inserted sentence authorizing a public or private nonprofit organization that receives agricultural commodities or the products thereof under clause (2) of the second sentence to transfer such commodities or products to another public or private nonprofit organization that agrees to use such commodities or products to provide, without cost or waste, nutrition assistance to individuals in low-income groups.
1954—Act Jan. 30, 1954, substituted "(other than those receiving price support under section 1446 of this title)" for "(other than those designated in section 1446 of this title)," in next to last sentence.
1949—Act Oct. 31, 1949, inserted sentence relating to perishable nonbasic agricultural commodities.
1948—Act July 3, 1948, inserted sentence providing for the accumulation of funds up to $300,000,000.
1939—Act June 30, 1939, in cl. (2), inserted "or by increasing their utilization through benefits, indemnities, donations or by other means, among persons in low income groups as determined by the Secretary of Agriculture".
1938—Act Feb. 16, 1938, inserted "Notwithstanding any other provision of this section, the amount that may be devoted, during any fiscal year after June 30, 1939, to any one agricultural commodity or the products thereof in such fiscal year, shall not exceed 25 per centum of the funds available under this section for such fiscal year."
1936—Act Feb. 29, 1936, struck out cl. (3) and inserted in lieu thereof immediately preceding second proviso "(3) reestablish farmers' purchasing power by making payments in connection with the normal production of any agricultural commodity for domestic consumption. Determinations by the Secretary as to what constitutes diversion and what constitutes normal channels of trade and commerce and what constitutes normal production for domestic consumption shall be final. The sums appropriated under this section shall be expended for such one or more of the above-specified purposes, and at such times, in such manner, and in such amounts as the Secretary of Agriculture finds will effectuate substantial accomplishment of any one or more of the purposes of this section."
Statutory Notes and Related Subsidiaries
Effective Date of 1948 Amendment
Amendment by act July 3, 1948, effective Jan. 1, 1950, see section 303 of act July 3, 1948, set out as a note under section 1301 of this title.
Additional Appropriations
Joint Res. July 1, 1941, ch. 266, §34, 55 Stat. 407, appropriated, in addition to the funds already provided, $25,000,000, to be used by the Secretary of Agriculture, for the purpose of effectuating this section, subject to the provisions of law relating to the expenditure of such funds.
Act July 1, 1941, ch. 267, §1, 55 Stat. 435, made the funds provided for in this section available for the fiscal year 1942.
Joint Res. June 26, 1940, ch. 432, §41, 54 Stat. 627, appropriated, in addition to the funds already provided, $50,000,000, to be used by the Secretary of Agriculture, for the purpose of effectuating this section, subject to the provisions of law relating to the expenditure of such funds.
Act June 25, 1940, ch. 421, §1, 54 Stat. 561, made the funds provided for in this section available for the fiscal year 1941.
Act June 30, 1939, besides amending clause 2, provided for the availability of funds provided by this section during the fiscal year 1940.
Act Aug. 25, 1937, ch. 757, title I, §1, 50 Stat. 762, provided for availability of portions of funds available under this section in fiscal years 1938 and 1939, for expenditure for price-adjustment payments with respect to 1937 cotton crop.
Reduction in Appropriation
Act July 30, 1947, ch. 356, title III, 61 Stat. 550, provided that, notwithstanding section 612c of this title, no more than $44,000,000 would be available during the fiscal year ending June 30, 1948, for use in effectuating this chapter; that $65,000,000 of the fiscal year 1948 appropriation were made available to carry out the National School Lunch Act of June 4, 1946, without regard to the 25 per cent limitation in section 612c and exclusive of funds expended pursuant to the last sentence of section 9 of the National School Lunch Act: provided that no part of such funds were to be used for nonfood assistance under section 5 of said Act; and that the remainder of the fund appropriated by said Act for the fiscal year 1948 was rescinded effective July 1, 1947, carried to the surplus fund, and covered into the Treasury immediately thereafter.
Cancellation or Rescission of Appropriation
Act Apr. 3, 1948, ch. 169, title I, §112(f), 62 Stat. 148, which provided in part for the rescission or cancellation of appropriations under this section as provided for in act July 30, 1947, ch. 356, title III, 61 Stat. 550, was repealed by act Oct. 10, 1951, ch. 479, title V, §503(b)(1), as added June 20, 1952, ch. 449, §7 (c), 66 Stat. 144.
Report on Specialty Crop Purchases
Pub. L. 107–171, title X, §10901, May 13, 2002, 116 Stat. 536, directed Secretary of Agriculture, not later than one year after May 13, 2002, to submit to Congress a report on specialty crop and other commodity purchases under this section and section 612c–4 of this title.
Domestic Fish or Fish Product Compliance With Food Safety Standards or Procedures Deemed To Have Met Requirements for Federal Commodity Purchase Programs
Domestic fish or fish products produced in compliance with food safety standards or procedures accepted by Food and Drug Administration deemed to have met inspection requirements for program authorized by this section, except that lot inspections may be utilized, see section 733 of Pub. L. 104–180, set out as a note under section 342 of Title 21, Food and Drugs.
Report on Entitlement Commodity Processing
Pub. L. 101–624, title XVII, §1773(f), Nov. 28, 1990, 104 Stat. 3811, directed Comptroller General of the United States, not later than Jan. 1, 1992, to submit a report to Congress regarding processing of entitlement commodities used in child nutrition programs, with evaluation of extent to which processing of entitlement commodities occurs in the States, governmental requirements for participation in the processing vary among States, and entitlement commodity recipients are satisfied with access to and services provided through entitlement commodity processing, prior to repeal by Pub. L. 104–193, title VIII, §874, Aug. 22, 1996, 110 Stat. 2346.
Soup Kitchens and Other Emergency Food Aid
Pub. L. 100–435, title I, §110, Sept. 19, 1988, 102 Stat. 1651, as amended by Pub. L. 101–624, title XVII, §1774(a), Nov. 28, 1990, 104 Stat. 3811; Pub. L. 102–237, title IX, §922(a), Dec. 13, 1991, 105 Stat. 1888; Pub. L. 104–127, title IV, §404, Apr. 4, 1996, 110 Stat. 1029, established formula so that amount, measured by their value, of additional commodities that were to be provided to each State for redistribution to soup kitchens and food banks could be precisely calculated for fiscal years 1989 through 2002, and further provided for definitions, appropriations through fiscal year 2002 to purchase additional commodities, mandatory allotments to States, maintenance of effort by States, authority of Secretary to establish different formula for allocation of commodities, priority system for State distribution of commodities, and settlement and adjustment of claims, prior to repeal by Pub. L. 104–193, title VIII, §873(1), Aug. 22, 1996, 110 Stat. 2346.
Gleaning Clearinghouses
Pub. L. 100–435, title I, §111, Sept. 19, 1988, 102 Stat. 1654, as amended by Pub. L. 101–624, title XVII, §1774(b), Nov. 28, 1990, 104 Stat. 3812, provided that:
"(a)
"(b)
"(1)
"(2)
"(A) initiate and carry out gleaning activities, and to assist other organizations and individuals to do so, through lectures, correspondence, consultation, or such other measures as the Secretary may consider appropriate;
"(B) collect from public and private sources (including farmers, processors, and retailers) information relating to the kinds, quantities, and geographical locations of agricultural products not completely harvested;
"(C) gather, compile, and make available to public and nonprofit private organizations and to the public the statistics and other information collected under this paragraph, at reasonable intervals;
"(D) establish and operate a toll-free telephone line by which—
"(i) farmers, processors, and retailers may report to a Clearinghouse for dissemination information regarding unharvested crops and agricultural products available for gleaning, and may also report how they may be contacted;
"(ii) public and nonprofit organizations that wish to glean or to assist others to glean, may report to a Clearinghouse the kinds and amounts of products that are wanted for gleaning, and may also report how they may be contacted;
"(iii) persons who can transport crops or products may report the availability of free transportation for gleaned crops or products; and
"(iv) information about gleaning can be provided without charge by a Clearinghouse to the persons and organizations described in clauses (i), (ii), and (iii);
"(E) prepare, publish, and make available to the public, at cost and on a continuing basis, a handbook on gleaning that includes such information and advice as may be useful in operating efficient gleaning activities and projects, including information regarding how to—
"(i) organize groups to engage in gleaning; and
"(ii) distribute to needy individuals, including low-income and unemployed individuals, food and other agricultural products that have been gleaned; or
"(F) advertise in print, on radio, television, or through other media, as the Secretary considers to be appropriate, the services offered by a Clearinghouse under this section."
[Section 111 of Pub. L. 100–435 effective and implemented on Oct. 1, 1988, except that such section to become effective and implemented on Oct. 1, 1989, if final order is issued under section 902(b) of Title 2, The Congress, for fiscal year 1989 making reductions and sequestrations specified in the report required under section 901(a)(3)(A) of Title 2, see section 701(a), (c)(2) of Pub. L. 100–435, set out as an Effective Date of 1988 Amendment note under section 2012 of this title.]
Continuation of Provision of Cheese Supplies
Pub. L. 100–435, title I, §130, Sept. 19, 1988, 102 Stat. 1655, was redesignated section 5(d)(2) of Pub. L. 93–86, set out below, by Pub. L. 101–624, title XVII, §1774(c)(2)(A), Nov. 28, 1990, 104 Stat. 3813.
Encouragement of Food Processing and Distribution by Eligible Recipient Agencies
Pub. L. 100–435, title II, §220, Sept. 19, 1988, 102 Stat. 1659, as amended by Pub. L. 101–624, title XVII, §1772(h)(5), Nov. 28, 1990, 104 Stat. 3809; Pub. L. 102–237, title IX, §942, Dec. 13, 1991, 105 Stat. 1893, provided that, not later than 60 days after Sept. 19, 1988, Secretary of Agriculture was, to extent that Commodity Credit Corporation's inventory levels permitted, solicit applications for surplus commodities available for distribution under section 202 of Pub. L. 98–8 (7 U.S.C. 7502), and further provided for requirements for solicitations as well as review of applications, prior to repeal by Pub. L. 104–193, title VIII, §873(2), Aug. 22, 1996, 110 Stat. 2346.
Food Bank Demonstration Projects
Pub. L. 100–435, title V, §502, Sept. 19, 1988, 102 Stat. 1671, authorized Secretary of Agriculture to carry out demonstration projects to provide and redistribute certain agricultural commodities to needy individuals and families through community food banks and other charitable food banks, authorized Secretary to determine quantities, varieties, and types of agricultural commodities and products thereof to be made available to community food banks, and provided for report to Congress not later than July 1, 1990, as well as for termination of authority on Sept. 30, 1990, and appropriations to carry out projects, prior to repeal by Pub. L. 104–193, title VIII, §873(3), Aug. 22, 1996, 110 Stat. 2346.
Commodity Distribution Reform
Pub. L. 100–237, §§1–4, 7, 13–19, Jan. 8, 1988, 101 Stat. 1733, 1739, 1740, 1742, 1743, as amended by Pub. L. 101–624, title XVII, §§1772(h)(3), (4), 1773(a)–(e), Nov. 28, 1990, 104 Stat. 3809–3811; Pub. L. 102–342, title IV, §401, Aug. 14, 1992, 106 Stat. 914; Pub. L. 103–448, title III, §303, Nov. 2, 1994, 108 Stat. 4750; Pub. L. 105–336, title III, §§301, 302, Oct. 31, 1998, 112 Stat. 3167, 3168; Pub. L. 106–78, title VII, §752(b)(1), Oct. 22, 1999, 113 Stat. 1169; Pub. L. 106–472, title III, §307(a), Nov. 9, 2000, 114 Stat. 2073; Pub. L. 107–171, title IV, §4202(a), May 13, 2002, 116 Stat. 329; Pub. L. 108–134, §3, Nov. 22, 2003, 117 Stat. 1389; Pub. L. 108–211, §3, Mar. 31, 2004, 118 Stat. 566; Pub. L. 108–265, title III, §301, June 30, 2004, 118 Stat. 788; Pub. L. 113–79, title IV, §4104, Feb. 7, 2014, 128 Stat. 820, provided that:
"SECTION 1. SHORT TITLE.
"This Act [amending section 1431e of this title and sections 1755, 1769, and 1786 of Title 42, The Public Health and Welfare, and enacting provisions set out as notes under this section and section 1786 of Title 42] may be cited as the 'Commodity Distribution Reform Act and WIC Amendments of 1987'.
"SEC. 2. STATEMENT OF PURPOSE; SENSE OF CONGRESS.
"(a)
"(b)
"(1) should be improved as an effective means of removing agricultural surpluses from the market and providing nutritious high-quality foods to recipient agencies;
"(2) is inextricably linked to the agricultural support and surplus removal programs; and
"(3) is an important mission of the Secretary of Agriculture.
"SEC. 3. COMMODITY DISTRIBUTION PROGRAM REFORMS.
"(a)
"(1)
"(A) consult with the advisory council established under paragraph (3);
"(B) consider both the results of the information received from recipient agencies under subsection (f)(2) and the results of an ongoing field testing program under subsection (g) in determining which commodities and products, and in which form the commodities and products, should be provided to recipient agencies; and
"(C) give significant weight to the recommendations of the advisory council established under paragraph (3) in ensuring that commodities and products are—
"(i) of the quality, size, and form most usable by recipient agencies; and
"(ii) to the maximum extent practicable, consistent with the Dietary Guidelines for Americans published by the Secretary of Agriculture and the Secretary of Health and Human Services.
"(2)
"(A) the commodity distribution and commodity supplemental food programs established under sections 4(a) and 5 of the Agriculture and Consumer Protection Act of 1973 [Pub. L. 93–86] (7 U.S.C. 612c note);
"(B) the program established under section 4(b) of the Food and Nutrition Act of 2008 (7 U.S.C. 2013(b));
"(C) the school lunch, commodity distribution, and child care food programs established under sections 6, 14, and 17 of the Richard B. Russell National School Lunch Act (42 U.S.C. 1755, 1762a, and 1766);
"(D) the school breakfast program established under section 4 of the Child Nutrition Act of 1966 (42 U.S.C. 1773);
"(E) the donation of surplus commodities to provide nutrition services under section 311 of the Older Americans Act of 1965 (42 U.S.C. 3030a); and
"(F) to the extent practicable—
"(i) the emergency food assistance program established under the Emergency Food Assistance Act of 1983 (Public Law 100–237 [Pub. L. 98–8, title II]; 7 U.S.C. 612c note) [7 U.S.C. 7501 et seq.]; and
"(ii) programs under which food is donated to charitable institutions.
"(3)
"(i) representatives of recipient agencies, including food banks;
"(ii) representatives of food processors and food distributors;
"(iii) representatives of agricultural organizations;
"(iv) representatives of State distribution agency directors; and
"(v) representatives of State advisory committees.
"(B) The council shall meet not less than semiannually with appropriate officials of the Department of Agriculture and shall provide guidance to the Secretary on regulations and policy development with respect to specifications for commodities.
"(C) Members of the council shall serve without compensation but shall receive reimbursement for necessary travel and subsistence expenses incurred by them in the performance of the duties of the committee.
"(D) The council shall report annually to the Secretary of Agriculture, the Committee on Education and the Workforce and the Committee on Agriculture of the House of Representatives, and the Committee on Agriculture, Nutrition, and Forestry of the Senate.
"(E) The council shall expire on September 30, 1996.
"(b)
"(1) before the end of the 270-day period beginning on the date of the enactment of this Act [Jan. 8, 1988]—
"(A) implement a system to provide recipient agencies with options with respect to package sizes and forms of such commodities, based on information received from such agencies under subsection (f)(2), taking into account the duty of the Secretary—
"(i) to remove surplus stocks of agricultural commodities through the Commodity Credit Corporation;
"(ii) to purchase surplus agriculture commodities through section 32 of the Act of August 24, 1935 (7 U.S.C. 612c); and
"(iii) to make direct purchases of agricultural commodities and other foods for distribution to recipient agencies under—
"(I) the commodity distribution and commodity supplemental food programs established under sections 4(a) and 5 of the Agriculture and Consumer Protection Act of 1973 [Pub. L. 93–86] (7 U.S.C. 612c note);
"(II) the program established under section 4(b) of the Food Stamp Act of 1977 [now the Food and Nutrition Act of 2008] (7 U.S.C. 2013(b));
"(III) the school lunch, commodity distribution, and child care food programs established under sections 6, 14, and 17 of the Richard B. Russell National School Lunch Act (42 U.S.C. 1755, 1762a, and 1766);
"(IV) the school breakfast program established under section 4 of the Child Nutrition Act of 1966 (42 U.S.C. 1773); and
"(V) the donation of surplus commodities to provide nutrition services under section 311 of the Older Americans Act of 1965 (42 U.S.C. 3030a); and
"(B) implement procedures to monitor the manner in which State distribution agencies carry out their responsibilities;
"(2) provide technical assistance to recipient agencies on the use of such commodities, including handling, storage, and menu planning and shall distribute to all recipient agencies suggested recipes for the use of donated commodities and products (the recipe cards shall be distributed as soon as practicable after the date of enactment of this Act [Jan. 8, 1988] and updated on a regular basis taking into consideration the Dietary Guidelines for Americans published by the Secretary of Agriculture and the Secretary of Health and Human Services, as in effect at the time of the update of the recipe files);
"(3) before the end of the 120-day period beginning on the date of the enactment of this Act [Jan. 8, 1988], implement a system under which the Secretary shall—
"(A) make available to State agencies summaries of the specifications with respect to such commodities and products; and
"(B) require State agencies to make such summaries available to recipient agencies on request;
"(4) implement a system for the dissemination to recipient agencies and to State distribution agencies—
"(A) not less than 60 days before each distribution of commodities by the Secretary is scheduled to begin, of information relating to the types and quantities of such commodities that are to be distributed; or
"(B) in the case of emergency purchases and purchases of perishable fruits and vegetables, of as much advance notification as is consistent with the need to ensure that high-quality commodities are distributed;
"(5) before the expiration of the 90-day period beginning on the date of the enactment of this Act [Jan. 8, 1988], establish procedures for the replacement of commodities received by recipient agencies that are stale, spoiled, out of condition, or not in compliance with the specifications developed under subsection (a)(1), including a requirement that the appropriate State distribution agency be notified promptly of the receipt of commodities that are stale, spoiled, out of condition, or not in compliance with the specifications developed under subsection (a)(1);
"(6) monitor the condition of commodities designated for donation to recipient agencies that are being stored by or for the Secretary to ensure that high quality is maintained;
"(7) establish a value for donated commodities and products to be used by State agencies in the allocation or charging of commodities against entitlements; and
"(8) require that each State distribution agency shall receive donated commodities not more than 90 days after such commodities are ordered by such agency, unless such agency specifies a longer delivery period.
"(c)
"(1)
"(2)
"(d)
"(1) evaluate its system for warehousing and distributing donated commodities to recipient agencies designated in subparagraphs (A) and (B) of section 13(3) (hereafter referred to in this Act as 'child and elderly nutrition program recipient agencies');
"(2) in the case of State distribution agencies that require payment of fees by child and elderly nutrition program recipient agencies for any aspect of warehousing or distribution, implement the warehousing and distribution system that provides donated commodities to such recipient agencies in the most efficient manner, at the lowest cost to such recipient agencies, and at a level that is not less than a basic level of services determined by the Secretary;
"(3) in determining the most efficient and lowest cost system, use commercial facilities for providing warehousing and distribution services to such recipient agencies, unless the State applies to the Secretary for approval to use other facilities demonstrating that, when both direct and indirect costs incurred by such recipient agencies are considered, such other facilities are more efficient and provide services at a lower total cost to such recipient agencies;
"(4) consider the preparation and storage capabilities of recipient agencies when ordering donated commodities, including capabilities of such agencies to handle commodity product forms, quality, packaging, and quantities; and
"(5) in the case of any such agency that enters into a contract with respect to processing of agricultural commodities and their pr