Full opinion text
MEMORANDUM McCUNE, District Judge. The following is written to comply with Rule 52 following a nonjury trial during August and September of 1980. Plaintiff, in its complaint, mounted a broad attack on the 1978 amendments to the Federal Insecticide, Fungicide and Ro-denticide Act, 7 U.S.C.A. §§ 136 — 136y (1980), as well as certain regulations promulgated in 1979 by the Environmental Protection Agency (EPA) to implement the 1978 amendments. It seeks declaratory and injunctive relief from the operation of the challenged portions of FIFRA and the EPA’s regulatory practice and procedure as set forth in the regulations. Mobay is a major developer of pesticides and has been for many years. It has spent millions of dollars in research and development and experimentation and analysis. Production of pesticides is essential to the production of food throughout the world. The evaluation and registration of pesticides are essential to the protection of people. How both interests are to be accommodated has occupied the industry and the government for many years. Both interests have long sought an accommodation, but the result achieved thus far has left Mobay, and we suspect many other developers, exasperated and frustrated. As technology improves, more products are developed, but the need for protection increases. Mobay’s complaints are understandable. Certainly a. better accommodation can be devised by the human mind, and it must be, if the industry is to succeed in developing the sophisticated pesticides which will be required in the years to come. However, for the reasons which follow, we cannot grant either declaratory or in-junctive relief, in our judgment. In essence, Mobay attacks three features of FIFRA's new regulatory scheme. First, EPA’s use of data previously submitted by one applicant to support the application for registration filed by a later applicant. Second, disclosure provisions which make certain trade secret data submitted to EPA available to the public and to government contractors. Third, EPA’s policy of issuing, for the time being, only conditional registrations and of requiring, from time to time, general, as opposed to specific and detailed, data requirements in order to maintain the conditional registrations. These features of the regulatory scheme, Mobay claims, render research and development in the pesticide industry unprofitable and impractical. It says that chemical companies will not devote large amounts of money and time to developing new pesticides if they know that their trade secret data will be disclosed to others; if another company may obtain a registration by relying entirely on their data and submitting none of its own; if EPA is continually imposing new conditions on them which they must meet in order to keep their products on the market; or if EPA does not publish definite data requirements specifying exactly what tests and studies must be submitted. In short, Mobay contends that the scheme is now arbitrary and uncertain. The defendant offered justification for both the FIFRA amendments and EPA’s interpretation of those amendments, expressed in its regulations. The defendant contends that Congress and the EPA acted together to increase competition in the pesticide industry, present all scientific data necessary for informed regulatory decisions before EPA, protect the proprietary rights of data submitters, inform the public about the effects of the chemicals contained in the pesticides, and ease the burden EPA has long borne in processing thousands of applications for registration and analyzing innumerable items of data. In other words, despite FIFRA’s and the regulations’ seeming inscrutability, and their allegedly appro-priative data sharing scheme, and the interminable registration process, Congress and EPA have devised a rational scheme designed to meet several needs and satisfy diverse interests. Numerous exhibits were introduced at trial, and both sides have filed extensive pretrial and posttrial briefs. These, together with our review of the transcripts of the able direct and cross examination of both sides’ witnesses, have facilitated our understanding of FIFRA and the regulations, and our perception of Mobay’s objections to them. THE FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT Enacted in 1947, the Federal Insecticide, Fungicide, and Rodenticide Act, ch. 125, 61 Stat. 163 (1947), initially provided for a simple and straightforward registration process. An applicant seeking to register his pesticide — or “economic poison” as it was called then, see id. § 2(a) — was required to file with the Secretary of Agriculture his name and address, the name of the pesticide, a complete copy of the labeling and a statement of all claims made for it, including directions for use, and, if requested by the Secretary, a full description of the tests made and the results thereof upon which the claims were based. Id. § 4(a), 61 Stat. 167. If he deemed it necessary for the effective administration of the Act, the Secretary could require the applicant to submit the complete formula of the pesticide. Id. § 4(b). The early FIFRA made it unlawful for any person to reveal or use to his own advantage information relative to product formulas, acquired by authority of the Act, id. § 3(c)(4), and provided penalties for violations. Id. § 8, 61 Stat. 170. The Secretary registered the pesticide if it appeared that its composition was such as to warrant the proposed claims made for it and if it and its labeling and other submitted materials complied with the Act. Id. § 4(b), 61 Stat. 167-68. If the Secretary was dissatisfied with an application, he would notify the applicant of the manner in which the application failed to comply with the Act, and permit him to make the necessary corrections. Id. § 4(c), 61 Stat. 168. The Secretary was authorized to cancel the registration of any pesticide after it had been registered for five years, unless the registrant requested that it be continued in effect. Id. § 4(e). The Secretary was also authorized to cancel a registration at any time on his own motion “[i]n order to protect the public.” Id. § 4(c). FIFRA was virtually reenacted in 1972 (and then amended in 1975) as a response to growing public concern about public health and the ecological effects of pesticides. The new FIFRA provided for a more complete registration process and stronger enforcement measures, and heralded a policy of thorough scientific analysis of pesticide chemicals before making them available to the public. Now, under § 3(c)(5), not only does an applicant for registration have to show that his pesticide’s composition is such as to warrant the proposed claims for it and that its labeling and other submitted materials comply with the Act before he may obtain a registration, but the EPA must also determine that the pesticide will perform its intended function without unreasonable adverse effects on the environment, and that, when used in accordance with widespread and commonly recognized practice, it will not generally cause unreasonable adverse effects on the environment. Federal Environmental Pesticide Control Act of 1972, Pub. L. No. 92-516, § 2, 86 Stat. 980-81 (codified at 7 U.S.C.A. § 136a(c)(5) (1980)). Under § 3(c)(3), EPA must review the data submitted with an application and, “as expeditiously as possible,” either register the pesticide or notify the applicant that his application does not comply with FIFRA. Id., 86 Stat. 980, 7 U.S.C.A. § 136a(c)(3). Under the 1972 amendments, data submitters for the first time were given proprietary rights in their data. Section 10(a) permitted them to mark any portions of their data which they considered to be trade secrets or commercial or financial information, and section 10(b) prohibited the EPA from disclosing those portions. The amendments affected data submitters’ rights in another way. As under the 1947 Act, applicants still had to submit full descriptions of the tests made and the results thereof upon which their claims were based, if they were requested to do so by EPA. But Congress added the following, to what was now § 3(c)(1)(D): [D]ata submitted 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 10(b). Federal Environmental Pesticide Control Act of 1972, Pub. L. No. 92-516, § 2, 86 Stat. 980. The 1975 amendments limited this protection, however, to data submitted on or after January 1,1970. Act of November 28, 1975, Pub. L. No. 94-140, § 12, 89 Stat. 755. If the parties could not agree on the amount and method of payment, the EPA could make this determination, with the owner of the data having a right of appeal to a federal district court. But in no event was registration to be delayed pending the determination of reasonable compensation. Id. One final feature of the amended FIFRA is worth noting. The EPA, realizing that pesticides registered under the 1947 FIFRA had not been subjected to the thorough scientific testing that new products had to undergo, planned to reregister these older pesticides under the stricter standards of the 1972 amendments. This reregistration was to occur by October 21,1976, four years after the enactment of the 1972 amendments. Federal Environmental Pesticide Control Act of 1972, Pub. L. No. 92-516, § 4(c)(2), 86 Stat. 999. This deadline was extended to October 21, 1977, by the 1975 amendments. Act of Nov. 28,1975, Pub. L. No. 94-140, § 4(ii), 89 Stat. 752. Problems soon developed with the registration process. One problem was that many data submitters took advantage of FIFRA’s trade secret provisions and marked their data on file with EPA as trade secrets pursuant to § 10(a), thereby relying on §§ 10(b) and 3(c)(1)(D) to preclude EPA’s use of that data to support anyone else’s application without their permission. These claims of trade secret protection thus operated to limit the amount of data available for the EPA to use in considering applications for registration, and to thwart the compensation provision of § 3(c)(1)(D). A second problem was that many applications for new pesticides were being denied because they had insufficient data for meeting the stringent standards of the 1972 amendments necessary for a § 3(c)(5) finding of no “unreasonable adverse effects on the environment,” while similar products registered under the 1947 Act and awaiting reregistration remained on the market. This created a double standard in registration. The incongruity was particularly irksome to an applicant whose rejected pesticide was identical or substantially similar to one on the market. The third problem grew out of the burden of separately reregistering the previously registered pesticides. Upon reviewing its files during the mid-1970’s, EPA discovered that the data it had were incomplete and unreliable. It realized it could not reregister any registered pesticides until it determined in what respect the data were incomplete. That EPA would have to acquire more data, plus the fact that some 40,000 products had to be reregistered, impressed upon EPA that it would have to adopt a new registration system if it were to execute FIFRA’s mandate. Congress responded to EPA’s plight with the 1978 amendments. Federal Pesticide Act of 1978, Pub. L. No. 95-396, 92 Stat. 819. A notable feature of the amendments is the extensive changes made to § 3(c)(1)(D). Now, an applicant must file, if requested by EPA, “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....” 7 U.S. C.A. § 136a(c)(l)(D). The original data submitter still has proprietary rights in his data which an applicant who is relying on his data must respect, but these rights have been diminished. Congress removed from § 3(c)(1)(D) the ability of a data submitter to invoke § 10(b) trade secret protection over his data, and has substituted the following (which we paraphrase here, but quote in full below): 1. With respect to pesticides containing new active ingredients that are initially registered after September 30, 1978, data submitted to support the application for the original registration of the pesticide (or an application for an amendment adding a new use to the registration) shall not, without the written permission of the original data submitter, be considered by EPA to support an application by another person for a period of 10 years after EPA first registers the product. § 3(c)(l)(D)(i), 7 U.S.C.A. § 136a(e)(l)(D)(i). In other words, those who submit data relative to new chemicals contained in pesticides registered after September 30,1978, have exclusive use of their data for 10 years after the pesticides are registered. 2. With respect to data submitted after December 31, 1969, and which is not entitled to exclusive use, EPA may, without the permission of the original data submitter, consider any such data in support of another person’s application for 15 years following the date the data were originally submitted, but only if the applicant has made an offer to compensate the original data submitter and also submits the offer to EPA, accompanied by evidence of delivery of the offer to the original data submitter. The parties may fix the terms and amounts of compensation by agreement. If they cannot reach an agreement after 90 days, either party may initiate binding arbitration proceedings by asking the Federal Mediation and Conciliation Service to appoint an arbitrator. Federal officials or courts may not review an arbitrator’s findings or determinations except for fraud, misrepresentation, or other misconduct. While compensation is being established, registration of the pesticide is not to be delayed. § 3(c)(l)(D)(ii), 7 U.S.C.A. § 136a(c)(l)(D)(ii). 3. After the expiration of any period of exclusive use and any period for which compensation is required for use of the data, EPA may consider the data in support of another person’s application without the permission of the original data submitter and without an offer having been received to compensate the original data submitter. § 3(c)(l)(D)(iii), 7 U.S.C.A. § 136a(c)(l)(D) (iii). The trade secret provisions of § 10 have also been changed by the 1978 amendments. Section 10(d), 7 U.S.C.A. § 136h(d), authorizes the public disclosure of all information concerning the objectives, methodology, results, or significance of any test performed on or with a pesticide, and of any residue, environmental chemistry, safety, toxicology, metabolism, and fish and wildlife data. The use of any of this data for registration purposes shall be governed by § 3(c)(lXD). Information that discloses manufacturing or quality control processes, discloses the details of any methods of testing, detecting, or measuring the quantity of deliberately added inert ingredients, or discloses the identity or percentage quantity of any deliberately added inert ingredients, may not be released unless it is necessary to protect against an unreasonable risk of injury to health or the environment. Likewise, information concerning production, distribution, sale, or inventories is nondisclosable except in connection with a public proceeding to determine whether a pesticide or any ingredient causes unreasonable adverse effects on the environment, if disclosure is necessary in the public interest. Before disclosing any of the data described, however, EPA must notify the data submitter of the proposed disclosure, and § 10 sets out procedures for contesting it. Furthermore, disclosures to foreign or multinational pesticide producers, without the data submitter’s consent, are unauthorized under § 10(g), 7 U.S.C.A. § 136h(g). Penalties for unauthorized disclosures of any kind are provided in § 10(f), 7 U.S.C.A. § 136h(f). Another public disclosure provision, but which originated in the 1972 reenactment of FIFRA, is found at § 3(c)(2)(A), 7 U.S.C.A. § 136a(c)(2)(A). Section 3(c)(2)(A) states that within 30 days after the EPA registers a pesticide, it shall make available to the public the data contained in the registration statement, plus such other scientific information EPA deems relevant to its decision. EPA may not disclose information protected by § 10. A final disclosure provision is found at § 10(e), 7 U.S.C.A. § 136h(e), permitting EPA to disclose trade secret data to contractors with the United States and their employees, if EPA believes disclosure is necessary for the satisfactory performance of work in connection with FIFRA. As a condition to disclosure, however, the contractor must provide adequate security measures. As for the problem of alleviating the administrative burden of registering new pesticides and reregistering old ones, EPA devised an innovative process. Before the 1978 amendments, EPA usually was considering applications one at a time, and conducting full data reviews for each pesticide end-use product. This meant that sometimes it was analyzing data concerning products with the same active ingredients over and over again, resulting in a duplication of effort. This fact, together with the realization that it would have to reregister 40,000 products in the same manner, necessitated streamlining the registration process. Under EPA’s new process, it is changing its focus from the end-use product to the active ingredients of the end-use product. EPA is developing a generic standard for each active ingredient. It will conduct a review of all data pertinent to a particular active ingredient, and publish a standard detailing its findings and summarizing its position relative to the active ingredient. Essentially, each standard sets out the conditions which products containing that active ingredient must meet if they are to be registered. Thus, a full data review having already been performed when each standard was developed, EPA will be able simply to make registration decisions for end-use products based on the standard. EPA estimates that it will take 10 to 15 years to develop standards for all of the active ingredients, however, so it will be some time before all registered pesticides are reregis-tered. The 1978 amendments authorize and facilitate this change of philosophy. Section 3(c)(2)(C), 7 U.S.C.A. § 136a(c)(2)(C), provides that EPA shall publish regulations prescribing simplified registration procedures. One of these simplified procedures is described in § 3(c)(2)(D), 7 U.S.C.A. § 136a(c)(2)(D), which exempts applicants who have purchased a registered pesticide from another producer and propose to formulate it into an end-use product, from submitting or citing safety data relevant to the purchased product, or from offering to pay compensation otherwise required by § 3(c)(1)(D) for the use of such data. This is known as the “formulator’s exemption.” The 1978 amendments also removed the definite deadline when reregistration is to occur. Cognizant of the reality of the reregistration ordeal awaiting EPA, Congress has said that reregistration now shall occur “in the most expeditious manner practicable.” § 3(g), 7 U.S.C.A. § 136a(g). Finally, EPA sought to resolve the anomalous situation resulting from applicants being denied registrations for their pesticides because their data were insufficient to satisfy the stringent standards of the 1972 amendments, while pesticides registered before the amendments remain on the market. EPA proposes to conditionally register pesticides, upon a showing that allowing each product on the market will not significantly increase the risk of unreasonable adverse effects on the environment already presented by pesticides on the market. In other words, the EPA would not have to make a § 3(c)(5) determination that a pesticide would not cause unreasonable adverse effects on the environment before registering it. Rather, the EPA would only have to be satisfied that allowing the pesticide on the market would not significantly increase the risk of environmental harm already existing. The registrant would have to submit additional data when EPA requested it to fulfill the conditions imposed on his registration, but at least he would be able to sell his product. In this way, the double standard would be averted. The conditional registration authority is found at § 3(c)(7), 7 U.S.C.A. § 136a(c)(7). Section 3(c)(7) generally states that, notwithstanding § 3(c)(5), EPA may conditionally register or amend the registration of a pesticide if sufficient data are submitted, and registering or amending the registration of the pesticide would not significantly increase the risk of any unreasonable adverse effect on the environment. That EPA might require a § 3(c)(7) registrant to submit additional data is to be expected of a registration denominated as being “conditional.” Nevertheless, authority for requesting additional data to support registrations — conditional or not — is provided by the 1978 amendments in § 3(c)(2)(B), 7 U.S.C.A. § 136a(c)(2)(B). Once additional data are requested, registrants must provide evidence within 90 days that they are securing the data. Two or more registrants may agree to develop the additional data jointly, and if they cannot agree on the terms of a data development arrangement, any registrant may initiate binding arbitration. As with § 3(c)(1)(D), the findings and determination of the arbitrator are not subject to review except for fraud, misrepresentation, or misconduct. By failing to take steps to secure the additional data, cooperate with a joint development arrangement, or abide by an arbitration decision, a registrant may have his registration suspended. The changes made by the 1978 amendments are reflected in regulations implementing the conditional registration and data compensation provisions of FIFRA, which EPA published as final and interim final rules, respectively, on May 11,1979, at 44 Fed. Reg. 27,932-53 (published at 40 C.F.R. §§ 162.2(g), 162.7(d)-(e), (g), 162.8, 162.9-1 to 8,162.18-1 to 5 (1980)). For the purposes of this general discussion, it is necessary only to mention the notable features of the regulations at this time. Sections 162.9-1 to 8 interpret and implement the compensation provisions of § 3(c)(1)(D). It will be recalled that § 3(c)(1)(D) gives data submitters certain exclusive use or compensatory rights in their data. Section 3(c)(1)(D) also describes how applicants fulfill their responsibility of submitting data to EPA. Applicants must file a statement which includes, 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 appears in the public literature or that previously had been submitted to the Administrator.... 7 U.S.C.A. § 136a(c)(l)(D). EPA has interpreted this provision as requiring an applicant, if no generic standard exists, to rely on all data in EPA’s files which concern his product or a similar product, even if the applicant has submitted his own data which he himself has generated. See 40 C.F.R. § 162.9-4. EPA thus is foreclosing an applicant from exercising what a cursory reading of § 3(c)(1)(D) suggests is an option either to submit his own data or to cite data in EPA’s files. This is the so-called “cite all” method of supporting an application. EPA has interpreted § 3(c)(1)(D) in this way because it believes it is consistent with the spirit of FIFRA to require that it have all relevant information in order to determine that a pesticide will not cause unreasonable adverse effects on the environment. EPA says it cannot know if the data which an applicant chooses to give it is sufficient to make this determination. Of course, those other applicants who submitted the data to EPA upon which the applicant now relies will have to be compensated. Their names and the chemicals for which they submitted data appear on a “Pesticide Data Submitters by Chemical” list. An applicant must examine this list and offer to pay each person listed as a data submitter for that chemical. See 40 C.P.R. § 162.9-5. The regulations also provide that EPA will issue, almost exclusively, nothing but conditional registrations under § 3(e)(7). See id. § 162.7(d)-(e). It will issue unconditional registrations under § 3(c)(5) only when reregistering currently registered pesticides, when acting on applications for registration of products containing new chemicals, or when it determines that it would otherwise serve the public interest. Id. § 162.7(d)(1). MOBAY’S COMPLAINT Mobay’s complaint contains three counts. In Count I of its First Amended Complaint, Mobay asks us (1) to declare that the provisions of § 3(c)(1)(D), permitting the use of its data for its competitors’ benefit, constitute a taking without just compensation and violate the fifth amendment; (2) to declare unconstitutional the provision of § 3(c)(1)(D) which allegedly compels it to submit to binding arbitration the determination of reasonable compensation for use of its data, upon pain of forfeiture of its registration, and which limits its right to judicial review of that determination; (3) to declare that § 3(c)(2)(B) does not compel it to agree to develop, with other registrants, additional data requested by EPA, or to participate in procedures for reaching agreements concerning joint data development, or to submit to binding arbitration to resolve the problem of reaching agreements concerning joint data development; (4) to declare which registrants are exempted by the formulator’s exemption, described in § 3(c)(2)(D), from providing safety data or complying with § 3(c)(1)(D); and (5) to declare unconstitutional the public disclosure provisions of §§ 3(c)(2)(A), 10(d), and 10(e), and the prohibition against disclosures to foreign or multinational pesticide producers, set out in § 10(g). Mobay also seeks to enjoin EPA from using its trade secret data for other applicants’ applications and from disclosing its trade secret data, both without its express written permission; from otherwise implementing and enforcing §§ 3(c)(1)(D), 3(c)(2)(A), and 10(d); and from implementing and enforcing § 3(c)(2)(B). In Count II, Mobay seeks declaratory and injunctive relief from EPA’s administration of the pesticide registration procedure. It claims that EPA has violated §§ 3(c)(3) and 3(c)(5) by failing to review data submitted in support of its applications for registrations and granting it unconditional registrations as expeditiously as possible. Mobay also challenges the conditional registration and data compensation regulations, alleging that they violate FIFRA and are arbitrary, capricious, and unlawful. In particular, it takes exception to (1) the “cite all” method; (2) EPA’s conditional-registration-only policy; (3) EPA’s interpretation of the formulator’s exemption under § 3(c)(2)(D), as expressed in 40 C.F.R. § 162.9-7 (1980); and (4) the amendment of § 162.8, subsection (b) of which previously had set out extensive detailed data requirements for registration, but which now simply requests the submission of data sufficient for making an incremental risk assessment. Mobay says that the amendment now offers little guidance concerning the data to be submitted. In addition, Mobay alleges that the regulations are void because EPA did not comply with the procedural requirements of FIFRA and the Administrative Procedure Act, 5 U.S.C. § 553 (1976). Finally in Count II, Mobay seeks declaratory and injunctive relief with regard to EPA’s use or consideration of its trade secret data submitted prior to January 1, 1970, without its express written permission. In Count III, Mobay seeks to realize compensation rights from the reregistration of 23 products manufactured by other companies who supported their applications by relying on Mobay’s data, but who violated § 3(c)(1)(D). The district court in the Western District of Missouri ruled that Mobay would receive compensation when the 23 products were reregistered. See Mobay Chemical Corp. v. Costle, 447 F.Supp. 811, 823-24 (W.D.Mo.1978). That was before § 3(g) was added by the 1978 amendments to authorize EPA to reregister pesticides “in the most expeditious manner practicable,” however. In Count III, Mobay seeks a declaratory judgment that as applied to it, § 3(g) deprives it of its property without due process or just compensation, in violation of the fifth amendment. It also seeks a judgment ordering EPA to immediately reregister the 23 pesticides, or else to cancel their registrations. We divide our discussion into three parts. In Part I, we consider the effect of FIFRA on the trade secret data which Mobay has submitted to EPA. In Part II, we examine the registration process derived from the 1978 FIFRA amendments and defined by the compensation and conditional registration regulations. And in Part III, we consider the matter of reregistration. I PROVISIONS OF FIFRA AFFECTING MOBAY’S TRADE SECRET DATA A. EPA’s Use of Mobay’s Trade Secret Data to Support Other Applicants’ Applications Under § 3(c)(1)(D) Mobay alleges that the provisions of § 3(c)(1)(D), 7 U.S.C.A. § 136a(c)(lXD) (1980), permitting the use of its trade secret data for the benefit of its competitors without its consent, are beyond any power conferred on Congress by the Constitution, and constitute a taking of its property for a private purpose without due process and just compensation, in violation of the fifth amendment. In addition, it objects to the fact that the proprietary rights in its data provided by § 3(c)(1)(D) terminate once the limited periods of entitlement to exclusive use or compensation expire. Mobay also challenges § 3(c)(l)(D)’s provision for binding arbitration of disputes concerning reasonable compensation owed the original data submitter. It contends that the arbitration scheme violates its liberty of contract and constitutes a taking, in that it denies Mobay the right to a judicial. determination of just compensation for the taking of its property. EPA responds that, even if § 3(c)(1)(D) were found to constitute a taking, any taking would be for the public purpose of fostering competition in the pesticide industry. EPA explains that § 3(c)(1)(D) prevents a data submitter from relying on § 10(b) to impose an indefinite monopoly on his data, a monopoly which would extend well past the 17-year period provided for, patents. As to the issue of just compensation, EPA argues that Mobay may receive just compensation for any taking by filing a suit in the Court of Claims, pursuant to the Tucker Act. Addressing Mobay’s contention that its Tucker Act remedy is unavailable by virtue of the existence of binding arbitration for compensation disputes and the explicit prohibition against seeking judicial review of an arbitrator’s determination, EPA notes that Congress has not withdrawn a Tucker Act remedy, see Regional Rail Reorganization Act Cases, 419 U.S. 102, 126, 95 S.Ct. 335, 349, 42 L.Ed.2d 320 (1974), and that, in any event, it is the purpose of § 3(c)(l)(D)’s compensation provisions only to provide compensation as between the parties, rather than just compensation from the government. Finally, EPA denies that § 3(c)(1)(D) in fact constitutes a taking. It says that Mo-bay retains virtually all of its rights in its data. It also asserts that § 3(c)(l)(D)’s data consideration scheme represents a reasonable exercise of the government’s power to place as much information before it as possible for making informed decisions about pesticides which will affect public health and the environment. Mobay’s challenges to § 3(c)(1)(D) raised interesting questions involving the taking clause of the fifth amendment which both parties had briefed thoroughly, and which had been a major issue during the trial. Since the trial was held, however, the Third Circuit Court of Appeals has decided a case also involving .a challenge to § 3(c)(1)(D), Chevron Chemical Co. v. Costle, 641 F.2d 104 (3d Cir. 1981), cert docketed, No. 80-680. Chevron Chemical Company (Chevron) alleged that use by the EPA of its pre-1970 data was an uncompensated taking in violation of the fifth amendment. It also contended that use by the EPA of its post-1969 data to support other applicants’ applications was a taking for private rather than public purposes, and that the binding arbitration provision deprived it of an opportunity for a judicial determination of just compensation. The court of appeals did not reach the question whether § 3(c)(1)(D) took Chevron’s property, in violation of the fifth amendment, because it determined that Chevron essentially had no property in the first place. The district court in Chevron assumed that Chevron’s trade secret data were property, and EPA in this case was willing to assume that Mobay’s trade secret data likewise were property. Nevertheless, it is clear that a threshold determination must be made whether the subject matter of an alleged taking is “property” within the meaning of the fifth amendment. The court of appeals held that a property right arises out of an entitlement created by some law. Id. at 114, citing Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and Montayne v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976). Federal statutory law may protect intellectual property, but it can not preempt state law, which traditionally has protected it. The court of appeals noted that the 1972 amendment of FIFRA, adding § 3(c)(1)(D), conferred a property right in some data submitted to EPA. But that only provided protection from the date when the 1972 amendments became effective. Before that time, the only other pertinent federal statute was 18 U.S.C. § 1905, which provides criminal penalties for the unauthorized disclosure of trade secret data by federal officers or employees. The court observed, however, that criminal statutes are rarely construed as conferring a private right of action. Id. at 115, citing Chrysler Corp. v. Brown, 441 U.S. 281, 316-17, 99 S. Ct. 1705, 1725, 60 L.Ed.2d 208 (1979). At best, the court believed that 18 U.S.C. § 1905 created a federal law right of nondisclosure, not of non-use by a federal agency. Id. Finding no federal statute, the court then searched for any state law purporting to confer a state law property interest in data Chevron had voluntarily submitted to a federal agency. Chevron proffered only Restatement of Torts § 757 (1939), which provides civil liability for the nonprivileged disclosure or use of trade secrets. But the court observed that this provision also dealt with the disclosure of trade secrets to others, rather than use of trade secrets by a government agency. Id. The court recognized that Chevron undoubtedly had submitted its data to EPA and its predecessors with some expectation of privacy. But it held that 18 U.S.C. § 1905 and agency practice had defined the scope of that expectation prior to the 1972 FIFRA amendments, and that, since that time, the various versions of § 3(c)(1)(D) had done so. Id. In any event, the court expressed doubt that a state law defining the degree of confidentiality in which federal agencies must keep information submitted to them in connection with their regulatory responsibilities, if it existed, would survive supremacy clause scrutiny. Id. at 116. The court of appeals therefore held that Chevron had no property right in its data until the 1972 amendments created § 3(c)(1)(D). And the 1975 amendment of § 3(c)(1)(D) to provide compensation for reliance on data submitted after 1969 enlarged the property right to extend from January 1, 1970 onward. Nevertheless, despite the fact that Chevron did have a property interest in some of its data, the court of appeals held that “Congress, having conferred a property right to which the chemical companies had no prior claims, may condition that right to accommodate agency practice.” Id. at 117 n.29. Thus, the Chevron case must be read as authorizing EPA’s use, without the original data submitter’s permission, of data submitted before 1970. It also must be read as authorizing EPA’s use of data submitted after 1969, but in conformity with the compensation and exclusive use provisions of § 3(c)(1)(D) which were added by the 1978 amendments. Because we find that Chevron and Mobay’s challenges to § 3(c)(1)(D) are identical, we deny Mobay relief in connection with its contention that the use of its trade secret data to support applications by third parties under § 3(c)(1)(D) constitutes a taking in violation of the fifth amendment. Like Mobay, Chevron had also challenged the binding arbitration scheme provided by § 3(c)(1)(D) for resolving compensation disputes involving the use of post-1969 data. The district court ruled that the language of § 3(c)(1)(D) indicated that that section was intended to provide for the payment of compensation by a private entity, and not just compensation from the government if a taking occurred. 499 F.Supp. at 743. The district court observed that an arbitration scheme between private parties could not be viewed as precluding resort to the Court of Claims. As a result, the district court concluded that Chevron’s Tucker Act remedy had not been withdrawn. Id. See Regional Rail Reorganization Act Cases, 419 U.S. 102, 126, 95 S.Ct. 335, 349, 42 L.Ed.2d 320 (1974). The court of appeals did not disagree with the district court’s interpretation of the Regional Rail Reorganization Act Cases. But it held that it was unnecessary to consider whether a Tucker Act remedy was available, since it found no property interest beyond that conferred by 18 U.S.C. § 1905 and § 3(c)(1)(D), and hence there was no taking for which such a remedy was needed. 641 F.2d at 116-17. Since Mobay’s challenge to the arbitration scheme is similar to Chevron’s, we find that this portion of § 3(c)(1)(D) is valid and Mobay is not entitled to declaratory or injunctive relief. Mobay further claims that the allegedly compulsory binding arbitration scheme violates its liberty of contract. We disagree. First, arbitration comes into play only when Mobay and an applicant seeking to rely on its data cannot reach an agreement after 90 days on the terms and amount of compensation or on a procedure for reaching such an agreement, and either Mobay or the applicant requests arbitration. Second, EPA has published rules controlling the arbitration procedure. See 29 C.F.R. § 1440.1 (1980). Under FIFRA and the regulations, the rules of the Federal Mediation and Conciliation Service apply to the selection of the arbitrator and to the arbitration proceedings. The arbitrators are to be selected from the roster of commercial arbitrators maintained by the American Arbitration Association. Thus, EPA has supplied the arbitration procedure with detailed rules designed to provide guidance and ensure fairness, and has staffed it with arbitrators who are knowledgeable in commercial matters. Binding arbitration is not the exclusive means for determining reasonable compensation, but is to be used only after other methods have failed to reach an agreement. We find that the FIFRA arbitration scheme does not violate Mobay’s liberty of contract. Accordingly, we deny Mobay’s request for declaratory and injunctive relief from § 3(c)(l)(D)’s provision for binding arbitration to settle data compensation disputes. B. Trade Secret Data Disclosure Provisions Under §§ 3(c)(2)(A) and 10 1. Public Disclosure Under §§ 3(c)(2XA) and 10(d) Section 3(c)(2)(A), 7 U.S.C.A. § 136a(c)(2)(A), provides that within 30 days after EPA registers a pesticide, it shall make available to the public the data called for in the registration statement, together with such other scientific information as it deems relevant to its decision. Disclosure is subject to the trade secret provisions of § 10, 7 U.S.C.A. § 136h. Section 10, as mentioned earlier, permits data submitters to mark portions of their data which they consider to be trade secrets and, until the 1978 amendments, generally prohibited the EPA from disclosing such data to the public. The 1978 amendments qualified this prohibition, however. Now, under § 10(d)(l)-(2), 7 U.S.C.A. § 136h(d)(l)-(2), (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: Provided, That the use of such data for any registration purpose shall be governed by section 3 of this Act: Provided further, That 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. Section 10(d)(3), 7 U.S.C.A. § 136h(d)(3), provides that data submitters must receive notice of proposed disclosures under § 10(d)(1)(A), (B), or (C), or § 10(d)(2), and may challenge proposed disclosures in district court. It bears observing that the use of any data, which has been released under § 10(d), for registration purposes shall be governed by § 3(c)(1)(D). Mobay alleges in Count I that §§ 3(c)(2)(A) and 10(d) are beyond the power conferred on Congress by the Constitution, and that they constitute a taking without just compensation and due process of law, in violation of the fifth amendment. EPA argues that these sections represent a reasonable exercise of the police power designed to inform the public about the hazardous effects of toxic pesticides which are available on the market for purchase and use. We note at the outset that §§ 3(c)(2XA) and 10(d), being duly enacted by Congress, constitute “authorization by law” which precludes the criminal sanctions of 18 U.S.C. § 1905. The legislative history of FIFRA is replete with evidence of Congress’ concern that the public be informed about the rationale for an agency decision to register a pesticide, and that they be able to evaluate most of the data supporting that decision. But there is also evident a concern that trade secrets not be unduly compromised. With the addition of § 10(d), FIFRA joins other recent federal statutes which also provide for the disclosure of trade secret data submitted to the government. See, e. g., 15 U.S.C. § 2613 (Toxic Substances Control Act); 42 U.S.C. § 7607(a)(1) (emission data under the 1977 amendments to the Clean Air Act); 42 U.S.C. § 300j-4(d) (data concerning level of contaminants under the Safe Drinking Water Act). We believe that §§ 3(c)(2)(A) and 10(d) violate neither due process nor the taking clause of the fifth amendment. The Supreme Court made it clear long ago in National Fertilizer Association v. Bradley, 301 U.S. 178, 57 S.Ct. 748, 81 L.Ed. 990 (1937), and Corn Products Refining Co. v. Eddy, 249 U.S. 427, 39 S.Ct. 325, 63 L.Ed. 689 (1919), that it is too plain for argument that a manufacturer or vendor has no constitutional right to sell goods without giving to the purchaser fair information of what it is that is being sold. The right of a manufacturer to maintain secrecy as to his compounds and processes must be held subject to the right of the State, in the exercise of its police power and in promotion of fair dealing, to require that the nature of the product be fairly set forth. Corn Products Refining Co. v. Eddy, supra, 249 U.S. at 431-32, 39 S.Ct. at 327; National Fertilizer Association v. Bradley, supra, 301 U.S. at 182, 57 S.Ct. at 750. These cases held that state laws requiring manufacturers of syrup and fertilizer, respectively, to put labels on their containers disclosing the percentages of ingredients, did not violate the due process clause of the fourteenth amendment. The manufacturers had complained that the laws forced them to divulge their trade secret formulas, and thus deprived them of their property. As to Mobay’s allegation that the disclosure provisions constitute an unlawful taking of their property, we refer to the Third Circuit decision in Westinghouse Electric Corp. v. United States Nuclear Regulatory Commission, 555 F.2d 82 (3d Cir. 1977). In that case, the court of appeals upheld a Nuclear Regulatory Commission regulation making information submitted in connection with NRC’s licensing procedure available for public inspection or disclosure, except when a balancing of the interests of the data submitter urging nondisclosure, and the public interest in disclosure, compelled a different result. The Third Circuit explicitly rejected Westinghouse Electric’s contention that the regulation authorized a taking of its data without compensation in violation of the fifth amendment. Id. at 95. Cf. Utah Fuel Co. v. National Bituminous Coal Commission, 306 U.S. 56, 59 S.Ct. 409, 83 L.Ed. 483 (1939) (upholding an order of the Commission issued pursuant to the Bituminous Coal Act of 1937, directing the publication of certain costs and sales realization data furnished by producers; the Court said, id. at 61-62, 59 S.Ct. at 411, that “[ojbviously publication may be harmful to petitioners but as Congress had adequate power to authorize it and has used language adequate thereto we can find here no sufficient basis for an injunction.”) Thus, we hold that §§ 3(c)(2)(A) and 10(d) are within Congress’ police power, and do not violate the due process or taking clauses of the fifth amendment. We therefore deny Mobay’s request for relief as to that portion of Count I challenging those sections. 2. Disclosure to Government Contractors Under § 10(e) Mobay also challenges in Count I the provisions of § 10(e), 7 U.S.C.A. § 136h(e), which permits EPA to disclose trade secret data to contractors with the United States, and to employees of the contractors, if disclosure is necessary for the satisfactory performance of a contract in connection with FIFRA. Disclosure is contingent upon the contractor providing security precautions to protect the data’s confidentiality. Mobay alleges that EPA has not yet promulgated regulations with respect to these security precautions. It argues that disclosure to contractors without adequate safeguards denies it due process of law in violation of the fifth amendment. EPA concedes that it has not promulgated regulations implementing § 10(e). (According to James Nelson, a witness for EPA, EPA has not published final regulations because it is awaiting the outcome of this case and other litigation challenging the 1978 amendments.) But it points to the fact that it published a notice of interim procedures in 1978, which generally adopted the procedures described in EPA’s regulations implementing the Freedom of Information Act. 43 Fed.Reg. 59,060, 59,062 (1978). Among these procedures is the requirement that the data submitter be given advance notice of the proposed disclosure, and that the contract contain a specific clause restricting the use and disclosure of the data. Id. In addition, the EPA indicated in the notice that it will also follow procedures already set out for disclosures to contractors performing work in connection with the Toxic Substances Control Act. Id. EPA also notes that § 10(f), 7 U.S.C.A. § 136h(f), provides penalties for unauthorized disclosures of trade secret data obtained by contractors or their employees. We find that these procedures, even though not promulgated in final form, are adequate to protect the confidentiality of Mobay’s data. By reference, they incorporate safeguards found in other regulations which have gone unchallenged. In the absence of any contrary evidence, we cannot say that the safeguards provided are inadequate. United States v. Westinghouse Electric Corp., 638 F.2d 570, 579-80 (3d Cir. 1980). We therefore deny Mobay’s request for relief as to § 10(e). 3. Prohibition of Disclosure to Foreign and Multinational Pesticide Producers Under § 10(g) Section 10(g), 7 U.S.C.A. § 136h(g), prohibits EPA from knowingly disclosing data to any employee or agent of a business or entity engaged in the production, sale, or distribution of pesticides in countries other than or in addition to the United States, or to a person who intends to deliver the data to such a business or entity. If the data submitter consents, the EPA may disclose the data. Mobay argues that § 10(g) deprives it of its property without due process of law, and denies it equal protection of the laws. It asserts that the practical effect of § 10(g) is to permit disclosure of its data to companies doing business solely in the United States, but to deny disclosure of their data to it because it is a multinational corporation. Mobay contends that there is no reasonable or rational basis for distinguishing between multinational and foreign companies, and companies selling pesticides solely in the United States. Mobay also contends that § 10(g) will be ineffectual in preventing foreign or multinational pesticide producers from obtaining copies of its data, in that they can use third parties to make requests for desired data. Mobay says that § 10(g) will be unenforceable, because disclosure to the public under the general disclosure provisions of § 10(d) will result in almost instantaneous dissemination to foreign or multinational producers. Finally, Mobay says that § 10(g) does not provide a definition of “foreign and multinational pesticide producers.” EPA responds to Mobay’s equal protection challenge by arguing that § 10(g) was enacted to prevent foreign or multinational pesticide producers from obtaining trade secret data from EPA, and using it to support registrations in other countries whose pesticide laws do not provide for compensation of the original data submitter, as FIFRA’s § 3(c)(1)(D) does. Section 10(g) creates two classes: the class of pesticide producers engaged in the production, sale, or distribution of pesticides in countries other than the United States or in addition to the United States, and the class of pesticide producers engaged in the production, sale, or distribution of pesticides solely in the United States. In making an equal protection analysis, a court should not overturn a statutory classification “unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [it] can only conclude that the legislature’s actions were irrational.” Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979). There is a concern evident in the legislative history of § 10(g) that data released under FIFRA’s public disclosure provisions might be used to support registrations in other countries. For example, the National Agricultural Chemicals Association, whose members are pesticide producers and sellers, introduced its own proposal for public disclosure at hearings before the House Committee on Agriculture in 1977: A registrant, in submitting test data, should be authorized to provide for public inspection a reasonably detailed summary of the data, and mark as confidential the details of the test data. This would protect the details of the test data from being copied and used without authorization by others for the purpose of obtaining foreign registrations. Federal Insecticide, Fungicide, and Rodenti-cide Act: Hearings Before the House Comm, on Agriculture, 95th Cong., 1st Sess. 227 (1977) (statement of Jack Early) (emphasis added). Later the NACA submitted proposed principles, one of which was the following: It is recognized that there is a legitimate interest by segments of the public to know and appraise the data upon which registration is based. However, mandatory disclosure of the entire data could cause substantial competitive harm. For example, it could be used by competitors for foreign registration. Extending and Amending FIFRA: Hearings Before the Subcomm. on Department Investigations, Oversight, and Research of the House Comm, on Agriculture, 95th Cong., 1st Sess. 465 (1977) (statement of Jack E. Early). See also id. at 192, 482. Section 10(g) was initially proposed in the House of Representatives by H.R. 8681, 95th Cong., 1st Sess. (1977). The House Report accompanying it said that § 10(g) would “[p]rohibit disclosure of any data submitted to the Environmental Protection Agency under the act to any employee or agent of a business entity engaged in production, sale, or distribution of pesticides in countries other than the United States.” H.R.Rep. No. 95-663, 95th Cong., 2d Sess. 16, reprinted in [1978] U.S.Code Cong. & Ad.News 1966, 1989. The House provision was adopted by the conference committee, with the modification providing for disclosure in connection with public proceedings. H.Conf.Rep. No. 95-1560, 95th Cong., 2d Sess. 40, reprinted in [1978] U.S.Code Cong. & Ad.News 1966, 2056. Thus, it is apparent that § 10(g) was enacted to allay the fears of pesticide producers that data released under § 10(d) would be used for registration purposes in other countries. That Congress might have drawn a more inclusive classification is irrelevant. “[Perfection is by no means required.” Vance v. Bradley, supra, 440 U.S. at 108, 99 S.Ct. at 948. So long as the enactment in question has a rational and reasonable basis, we cannot say that Congress should have chosen a means “more precisely related to its primary purpose.” Id. at 109, 99 S.Ct. at 949. Consequently, we hold that § 10(g) does not deny Mobay equal protection of the law. We next address Mobay’s due process challenges to § 10(g). EPA points out that, when read together, §§ 10(g) and 10(f) impose criminal penalties for unauthorized disclosures, and do not preempt the exercise of civil remedies. Furthermore, the person to whom data is disclosed is criminally liable for delivering the data to foreign or multinational pesticide producers, in violation of his affirmation that he will not do so. § 10(g)(3), 7 U.S.C.A. § 136h(g)(3). Of course, these after-the-fact penalties are little consolation to a data submitter who believes his trade secrets have been compromised. Nevertheless, a data submitter may take measures to prevent this from occurring. The EPA’s Notice of Interim Procedures, published at 43 Fed.Reg. 59,060 (1978), provides that data submitters must receive advance notice of proposed disclosures before the requested data may be disclosed to the public under § 10(d). Once a data submitter receives notice of a proposed disclosure, it may seek judicial review of that decision to disclose. Id. at 59,062. See § 10(d)(3), 7 U.S.C.A. § 136h(d)(3). Y?e believe that these procedures are the best protection an information-disclosure statute can provide for minimizing the chance that foreign or multinational pesticide producers will obtain Mobay’s data. There must be balanced against Mobay’s interest in the confidentiality of data it submits to the government, the public’s interest in being informed about the effects of pesticides on public health and the environment. We do not believe that the absence of a specific definition of “foreign and multinational pesticide producer” is violative of due process. Section 10(g) explicitly applies to businesses or entities “engaged in the production, sale, or distribution of pesticides in countries other than the United States or in addition to the United States.” Having determined that § 10(g) does not deny Mobay due process or equal protection of the law, we therefore deny its request for relief in Count I as to § 10(g). C. EPA Requests for Additional Data Under § 3(c)(2)(B) Section 3(c)(2)(B), 7 U.S.C.A. § 136a(c)(2)(B), authorizes EPA to obtain additional data from registrants to maintain their registrations in effect, if it believes more information is necessary. Two or more registrants may agree to develop the data jointly, and if they cannot agree on the terms of a data development arrangement, any registrant may initiate binding arbitration. The arbitration procedure is similar to that of § 3(c)(1)(D). The arbitrator’s findings and determination are not subject to review except for fraud, misrepresentation, or misconduct. By failing to take steps to secure the additional data, cooperate with a joint data development arrangement, or abide by an arbitrator’s decision, a registrant may have his registration suspended. All additional data submitted are subject to § 3(c)(1)(D). In its complaint, Mobay seeks a declaratory judgment that § 3(c)(2)(B) does not obligate it to agree to develop additional data jointly with others, or to share in the cost of developing data. It also alleges that the binding arbitration provisions deprive it of its liberty of contract, encroach upon the judiciary, and deprive it of due process, all in violation of the fifth and ninth amendments. Finally, it seeks injunctive relief from the implementation of § 3(c)(2)(B). By stipulation filed August 25, 1980, Mo-bay and EPA agreed that § 3(c)(2)(B) does not .compel Mobay to enter into joint data development or cost sharing arrangements with other registrants, and that the arbitration provisions are applicable only if Mobay elects to enter into such arrangements. They also agreed that the standards of § 3(c)(2)(A), by which EPA shall publish guidelines specifying the kinds of information required to support registration, are applicable to the data requested under § 3(c)(2)(B). As a result of this stipulation, Mobay deleted the sections of Count I in its complaint which challenged § 3(c)(2)(B). In its posttrial brief, however, Mobay asserts that at trial, EPA offered evidence tending to show that it was, in fact, compelling registrants to enter into data developing and cost sharing arrangements. Mobay asks us to clearly set forth in this opinion the terms of their stipulation. The evidence to which Mobay apparently refers is Defendant’s Exh. No. 18. Marcia Williams, a witness for EPA, was questioned on direct examination about this exhibit, which is a form letter dated March 26, 1980, from EPA notifying registrants of a need for additional data to support the registration of products containing isocyanu-rates. The letter sets out the options registrants may exercise to submit the additional data, such as generating the data themselves or entering into joint data development arrangements with other registrants. On page 12 of Exh. No. 18, EPA states that if a registrant attempts to develop the data with another registrant, and has made a bona fide offer to share in the expenses, but the othe