Federal Insecticide, Fungicide, and Rodenticide Act

• Author: Environmental Law Reporter
• Pages: 425-469

Federal Insecticide, Fungicide, and Rodenticide Act

7 U.S.C. §§136-136y

§136.[FIFRA §2]

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, defoli-

ant, desiccant, or nitrogen stabilizer, an ingredient which will pre-

vent, 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, am-

monia volatilization, or urease production through action affecting

soil bacteria.

(b) Administrator

The term “Administrator” means the Administrator of the Environ-

mental 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 cer-

tified under section 136i of this title as authorized to use or super-

vise 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) of

this section, 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 subchap-

ter.

(2) Private applicator

The term “private applicator” means a certified applicator who

uses or supervises the use of any pesticide which is classified for re-

stricted 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 classi-

fied 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 in-

structions 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 of 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 cancella-

tion proceeding would be likely to result in unreasonable adverse ef-

fects on the environment or will involve unreasonable hazard to the

survival of a species declared endangered or threatened by the Secre-

tary 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 con-

tains—

(1) the name and percentage of each active ingredient, and the to-

tal 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 ele-

mentary 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 anthropods 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.

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FIFRA §2 FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT 7 U.S.C. §136

(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 accompany-

ing the pesticide or device, except to current official publications

of the Environmental Protection Agency, the United States De-

partments of Agriculture and Interior, the Department of Health

and Human Services, State experiment stations, State agricul-

tural 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 repre-

sentation 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 Ad-

ministrator 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 un-

der 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 label-

ing 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 ade-

quate 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 ade-

quate 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 con-

spicuousness (as compared with other words, statements, de-

signs, 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 wrap-

per of the retail package, if there be one, through which the ingre-

dient statement on the immediate container cannot be clearly

read) which is presented or displayed under customary condi-

tions or purchase, except that a pesticide is not misbranded under

this subparagraph if—

(i) The size or form of the immediate container, or the out-

side container or wrapper of the retail package, makes it im-

practicable to place the ingredient statement on the part which

is presented or displayed under customary conditions of pur-

chase; and

(ii) the ingredient statement appears prominently on another

part of the immediate container, or outside container or wrap-

per, permitted by the Administrator;

(B) the labeling does not contain a statement of the use classifi-

cation under which the product is registered;

(C) there is not affixed to its container, and to the outside con-

tainer or wrapper of the retail package, if there be one, through

which the required information on the immediate container can-

not be clearly read, a label bearing—

(i) the name and address of the producer, registrant, or per-

son 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 ef-

fectuate 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 addi-

tion 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 other-

wise) 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 cuti-

cle, 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 sub-

stances 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 stabi-

lizer, except that the term “pesticide” shall not include any article that

is a “new animal drug” within the meaning of section 321(w)1of 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 con-

ditions of use for the article, or that is an animal feed within the mean-

ing of section 321(x)2of 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 en-

ter normally sterile areas of the body.

(v) Plant regulator

The term “plant regulator” means any substance or mixture of sub-

stances intended, through physiological action, for accelerating or re-

tarding the rate of growth or rate of maturation, or for otherwise alter-

ing 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 amend-

ments. Also, the term “plant regulator” shall not be required to include

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7 U.S.C. §136 ENVIRONMENTALLAW DESKBOOK FIFRA §2

1. See References in Text note below.

2. See References in Text note below.

any of such of those nutrient mixtures or soil amendments as are com-

monly 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, nonpoison-

ous in the undiluted packaged concentration.

(w) Producer and produce

The term “producer” means the person who manufactures, pre-

pares, 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 “pro-

ducer” 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 unreason-

able adverse effects on the environment.

(y) Registrant

The term “registrant” means a person who has registered any pesti-

cide 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 Com-

monwealth of Puerto Rico, the Virgin Islands, Guam, the TrustTerri-

tory 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 ac-

count 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 con-

sider 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 de-

vice or active ingredient used in producing a pesticide is produced, or

held, for distribution or sale.

(ee) To use any registeredpesticide 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 specifi-

cally 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 la-

beling unless the labeling specifically states that the product may

be applied only by the methods specified on the labeling, (4) mix-

ing a pesticide or pesticides with a fertilizer when such mixture is

not prohibited by the labeling, (5) any use of a pesticide in confor-

mance 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 agricul-

tural 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 advi-

sory opinion specifically requires the use of definite amounts of dilu-

tion.

(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 deter-

mination under section 136a(c)(5) of this title and which study, in-

formation, 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, de-

liver for shipment, release for shipment, or receive and (having so re-

ceived) deliver or offer to deliver.The term does not include the hold-

ing or application of registered pesticides or use dilutions thereof by

any applicator who provides a service of controlling pests without de-

livering 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 nitrifi-

cation, 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.—3

(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, denitri-

fication, ammonia volatilization4urease production regardless of

the actual use or purpose for, or future use or purpose for, the sub-

stance 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)5Maintenance applicator

The term “maintenance applicator” means any individual who, in

the principal course of such individual’semployment, uses, or super-

vises the use of, a pesticide not classified for restricted use (other

than a ready to use consumer products pesticide); for the purpose of

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FIFRA §2 FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT 7 U.S.C. §136

3. So in original. Period probably should not appear.

4. So in original. Probably should be “, or”.

5. So in original. No subsec. (ii) was enacted.