The Nickel Report

By March 1, 2024, all establishments that produce pesticides, devices, or active ingredients for pesticides must file their annual production reports for the 2023 reporting year pursuant to Section 7 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). 7 U.S.C. § 136e(c)(1). Last year, EPA’s Office of Enforcement and Compliance Assurance reminded stakeholders that the agency is poised to take action against companies that violate FIFRA and noted that non-compliance with the requirements related to producing pesticides and devices by EPA-registered establishments is increasing.

Under Section 7, “production” of pesticides includes formulation, packaging, repackaging, labeling, and relabeling. Companies that produce pesticides must register their establishments with EPA prior to production. And these establishments must submit annual reports to EPA regarding their production activities. Failure to register a pesticide-producing establishment or submit reports  may result in termination of the establishment’s registration as well as penalties up to $24,255 per violation. Therefore, any establishment producing pesticides, active ingredients or devices, including foreign companies or establishments that import pesticides into the United States, must prepare to file their annual production reports with EPA in the coming days.

The first step in filing an annual production report is to obtain a company number and register as an establishment. These are one-time requirements; therefore, if an establishment has filed an annual production report with EPA in prior years, it need not obtain another company number nor re-register as an establishment. Next, an establishment must file its initial and (thereafter) annual production report with EPA. An initial report is due to EPA 30 days after the company is notified of its pesticide-producing or device-producing establishment number. Thereafter, each establishment that produces pesticides or devices must submit a report to EPA annually, by March 1, as required by Section 7 of FIFRA.

Another important part of an establishment’s reporting obligations is reporting information on Form 3540-16 with EPA. This form requests information such as the product’s registration number, name, and amounts produced and distributed. Note that this report is required even if a registered establishment did not produce or distribute any such materials in the previous year (thus, the establishment would report “0” production volume). It is unlawful to knowingly falsify pesticide production information reported to EPA on Form 3540-16.

Other EPA resources, such as registering for EPA’s Central Data Exchange system and how to add and use EPA’s Section Seven Tracking System are available here. Filing one’s annual production report is a legal requirement, and the pesticides team at Hunton Andrews Kurth LLP is able to assist establishments with navigating FIFRA compliance before the March 1, 2024 deadline.