Freedom of Information Act (FOIA)

Limitations on Disclosure of Information under Pesticide Law

Provisions restricting or prohibiting disclosure of information routinely contained in records maintained by the Office of Pesticide Programs (OPP) are found in two laws:

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FOIA Exemptions Often Applicable to Pesticide Records

Before submitting a FOIA request, you will need to decide whether you seek access to information that may be entitled to confidential treatment, or that otherwise may be exempt from disclosure under FOIA.

  • We can complete the request faster if you exclude this information from the scope of your request.
  • Non-responsive information redacted from requested records will be indicated and described.

FOIA exemptions most frequently asserted and the OPP records likely to contain such information are:

  • Exemption 3 – Information exempted by another statute (e.g., FIFRA).
  • Exemption 4 – Trade secrets, commercial, or financial information (Confidential Business Information).
    • Registration jackets,
    • data evaluation records, and
    • product chemistry data frequently contain information that may be entitled to confidential treatment.
  • Exemption 5 – Privileged inter- or intra-agency memoranda.
    • Emails and other internal communications often contain deliberative or otherwise privileged information.
  • Exemption 6 – Personal privacy.
    • Incident reports often contain personal information from citizens.
  • Exemption 7 – Records or information compiled for law enforcement purposes.
    • Registration jackets,
    • emails, and
    • incident reports may contain enforcement-sensitive information.

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Confidential Business Information

OPP records contain much information that may qualify for confidential treatment under FOIA Exemption 4, and its corollary FIFRA section 10(b). Examples of information that may be considered confidential include:

  • Identity of product inert ingredients.
  • Identity of product ingredient source.
  • Description of manufacturing or quality control processes, and corresponding impurities.
  • Product chemistry registration data.
  • Information about a pending registration action.
  • Sales, production, or other commercial/financial information.

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How We Process Requests for Information that may be Confidential

If you seek access to information that may be entitled to confidential treatment, or that otherwise may be exempt from disclosure under FOIA, we will:

  • initially deny your request; and
  • provide you the opportunity to appeal the determination.

If your request is initially denied for reasons of business confidentiality:

  • We will contact the affected business in writing to ascertain the validity of the claims.
  • The affected business has 15 working days from receipt of our inquiry to substantiate the claim of confidentiality.
  • If the claim is supported, the request is forwarded on automatic appeal to the Office of General Council (OGC) for a final confidentiality determination.
  • If the claim is waived, the information is released to you.

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Requirement to Affirm Non-multinational Status

In addition, EPA can only provide proprietary pesticide studies or data submitted under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to requesters who can sign the Affirmation of Non-multinational Status.

In the 1978 amendments to FIFRA, Congress expressly limited who may receive such information and how it may be used by recipients. Congress imposed these limits to protect registrants of pesticides in the United States against unauthorized use of their health and safety data by competitors to obtain pesticide registrations in foreign countries.

Those who obtain pesticide registrations in foreign countries are called "Foreign or Multinational Pesticide Producers" in FIFRA section 10(g). FIFRA section 10(g):

  • Requires EPA to avoid knowingly disclosing this information to a foreign or multinational pesticide producer, or to agents or employees of these entities.
    • Numbered paragraphs (1) and (2) of the "Affirmation of Non-Multinational Status" are designed to allow EPA to implement this requirement.
  • Requires each person who seeks to obtain this information from EPA to affirm that he or she does not intend to, and will not purposefully or negligently deliver (or cause delivery of) the information to a foreign or multinational pesticide producer.
    • Numbered paragraph (3) of the Affirmation is designed to allow EPA to implement this requirement.
  • Makes it unlawful for a person requesting registrant-submitted pesticide information to furnish a false or misleading Affirmation of Non-Multinational Status to EPA. Violations are punishable under 18 USC 1001.

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Issues and Examples on Multinational Status

It is EPA's position that it would be unlawful for a person to execute the Affirmation while having the intent to publish (or otherwise to deliver in any way to a foreign or multinational pesticide producer in its entirety) a previously unpublished toxicity study submitted by a registrant. This is because the information delivered likely could be used to satisfy a data requirement imposed by a foreign country as a condition of producing, distributing, selling, shipping, or using the product in that country.

However, section 10(g) would not restrict an intent to publish or deliver brief excerpts from such information or summaries or critiques of it, identified as such, since these likely would not be useful in satisfying data requirements imposed by other countries.

The prohibition does not apply to publication or delivery of information that is already freely available to the public (such as data that has been published) or to publication of data with the consent of the registrant that submitted it to EPA.

It is less clear whether the statute imposes any other duties or prohibitions on persons once they have received the information from EPA, and EPA has taken no position on this issue. Some firms who have submitted data to EPA, however, argue vigorously that section 10(g) governs the use or disclosure of data by persons who have obtained it from EPA. Accordingly, you should be aware that if your disclosure of data obtained by you from EPA results in its becoming available to a foreign or multinational pesticide producer (in a form that enables it to be used to satisfy foreign data requirements), it is possible that the firm that submitted it to EPA may seek relief against you in court, and may argue in court that you were required by section 10(g) to guard against disclosing data to a Multinational or allowing such disclosure.

You may therefore wish to take steps to avoid inadvertent disclosure of the data by keeping it in a secure place. Before publishing it or deliberately disclosing it to others, you may wish to seek legal advice.

Additional Information

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