[Title 40 CFR 178]
[Code of Federal Regulations (annual edition) - July 1, 1996 Edition]
[Title 40 - PROTECTION OF ENVIRONMENT]
[Chapter I - ENVIRONMENTAL PROTECTION AGENCY--(Continued)]
[Subchapter E - PESTICIDE PROGRAMS]
[Part 178 - OBJECTIONS AND REQUESTS FOR HEARINGS]
[From the U.S. Government Publishing Office]
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PROTECTION OF ENVIRONMENT
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1996-07-01
1996-07-01
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OBJECTIONS AND REQUESTS FOR HEARINGS
178
PART 178
PROTECTION OF ENVIRONMENT
ENVIRONMENTAL PROTECTION AGENCY--(Continued)
PESTICIDE PROGRAMS
PART 178--OBJECTIONS AND REQUESTS FOR HEARINGS--Table of Contents
Subpart A--General Provisions
Sec.
178.3 Definitions.
Subpart B--Procedures for Filing Objections and Requests for Hearings
178.20 Right to submit objections and requests for a hearing.
178.25 Form and manner of submission of objections.
178.27 Form and manner of submission of request for evidentiary
hearing.
178.30 Response by Administrator to objections and to requests for
hearing.
178.32 Rulings on requests for hearing.
178.35 Modification or revocation of regulation.
178.37 Order responding to objections on which a hearing was not
requested or was denied.
Subpart C--[Reserved]
Subpart D--Judicial Review
178.65 Judicial review.
178.70 Administrative record.
Authority: 21 U.S.C. 346a, 348, 371(a); Reorg. Plan No. 3 of 1970.
Source: 55 FR 50291, Dec. 5, 1990, unless otherwise noted.
Subpart A--General Provisions
Sec. 178.3 Definitions.
For the purposes of this part:
Administrator means the Administrator of the Agency, or any officer
or employee of the Agency to whom the Administrator delegates the
authority to perform functions under this part.
Agency means the United States Environmental Protection Agency.
Assistant Administrator means the Agency's Assistant Administrator
for Prevention, Pesticides and Toxic Substances, or any officer or
employee of the Agency's Office of Prevention, Pesticides and Toxic
Substances to whom the Assistant Administrator delegates the authority
to perform functions under this part.
FFDCA means the Federal Food, Drug, and Cosmetic Act, as amended, 21
U.S.C. 301-392.
[55 FR 50291, Dec. 5, 1990, as amended at 57 FR 28087, June 24, 1992]
Subpart B--Procedures for Filing Objections and Requests for Hearing
Sec. 178.20 Right to submit objections and requests for a hearing.
(a) On or before the 30th day after the date of publication in the
Federal Register of an order under part 177 or part 180 of this chapter
establishing, modifying, or revoking a regulation, or an order under
part 177 of this chapter denying all or any portion of a petition, a
person adversely affected by such order or petition denial may submit,
in accordance with Sec. 178.25, one or more written objections to the
order (or to the action that is the subject of the order).
(b) A person may include with any such objection a written request
for an evidentiary hearing on such objection in accordance with
Sec. 178.27
(c) A person who submits objections need not request a hearing. For
instance, if the person's objections are of a purely legal or policy
nature, a hearing request would be inappropriate; the purpose of an
evidentiary hearing is to resolve factual disputes. The Administrator
will rule on the objections, whether or not a hearing is requested.
(d) As a matter of discretion, the Administrator may order a hearing
on an objection even though no person has requested a hearing.
Sec. 178.25 Form and manner of submission of objections.
(a) To be considered by the Administrator, an objection must:
(1) Be in writing.
(2) Specify with particularity the provision(s) of the order,
regulation, or denial objected to, the basis for the objection(s), and
the relief sought.
(3) Be signed by the objector.
(4) State the objector's name and mailing address.
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(5) Be accompanied by the fee prescribed by Sec. 180.33(i) of this
chapter, if the objection is to an order or regulation issued under part
180 of this chapter.
(6) Be submitted to the hearing clerk.
(7) Be received by the hearing clerk not later than the close of
business of the 30th day following the date of the publication in the
Federal Register of the order to which the objection is taken (or, if
such 30th day is a Saturday, Sunday, or Federal holiday, not later than
the close of business of the next government business day after such
30th day).
(b) Submissions to the hearing clerk shall be made as follows:
(1) Mailed submissions should be addressed to: Office of the Hearing
Clerk (A-110), U.S. Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460.
(2) For personal delivery, the Office of the Hearing Clerk is
located at: room M3708, Waterside Mall, 401 M St., SW., Washington, DC.
Sec. 178.27 Form and manner of submission of request for evidentiary hearing.
To be considered by the Administrator, a request for an evidentiary
hearing must meet the criteria in Sec. 178.32, and must:
(a) Be submitted as a part of, and specifically request an
evidentiary hearing on an objection that complies with the requirements
of Sec. 178.25.
(b) Include a statement of the factual issue(s) on which a hearing
is requested and the requestor's contentions on each such issue.
(c) Include a copy of any report, article, survey, or other written
document (or the pertinent pages thereof) upon which the objector relies
to justify an evidentiary hearing, unless the document is an EPA
document that is routinely available to any member of the public.
(d) Include a summary of any evidence not described in paragraph
(a)(3) of this section upon which the objector relies to justify an
evidentiary hearing.
(e) Include a discussion of the relationship between the factual
issues and the relief requested by the objection.
Sec. 178.30 Response by Administrator to objections and to requests for hearing.
The Administrator will respond to objections, and to requests for a
hearing on such objections, as set forth in this section.
(a) Denial of objections that are improperly submitted or that seek
an unavailable form of relief. The Administrator will by order issued
under Sec. 178.37 deny each objection and each request for a hearing
that is included with such an objection, if:
(1) The objection is found not to conform to Sec. 178.25.
(2) The action requested by the objection is inconsistent with any
provision of FFDCA.
(3) The action requested by the objection is inconsistent with any
generic, e.g., non-chemical specific, interpretation of a provision of
FFDCA in any regulation in this chapter (the proper procedure in such a
case is for the person to petition for an amendment of the regulation
involved).
(b) Denial of improperly submitted requests for hearing. The
Administrator will then determine whether any objection that has not
been denied under paragraph (a) of this section was accompanied by a
request for an evidentiary hearing that conforms to Sec. 178.27. The
Administrator will deny under Sec. 178.37 each request that does not
conform to Sec. 178.27.
(c) Grouping of certain related objections. If the Administrator
then finds (1) That two or more undenied objections are substantially
similar, or are related in such a way that any judicial review of the
Administrator's action on those objections should occur at the same
time, and (2) that one or more of those objections was accompanied by an
undenied request for an evidentiary hearing on that objection, the
Administrator will treat those objections as a group and will rule on
them only after ruling under Sec. 178.32 on the associated request for
hearing.
(d) Rulings on objections for which a request for hearing has been
granted. If the Administrator rules under Sec. 178.32 that an
evidentiary hearing should be held on an objection, the Administrator
will resolve the issues raised by any other
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objection grouped with it under paragraph (c) of this section in
conjunction with the evidentiary hearing upon which the hearing request
was granted, unless the Administrator for good cause determines
otherwise.
(e) Rulings on objections for which no request for hearing was
received, or for which each request for hearing was denied. Except as
provided in paragraphs (c) and (d) of this section, if no hearing was
requested on an objection, or if each such request that was made is
denied under the criteria of paragraphs (a) or (b) of this section or
Sec. 178.32(b), the Administrator will rule on the objection under
Sec. 178.37.
Sec. 178.32 Rulings on requests for hearing.
(a) In the case of each request for an evidentiary hearing that was
not denied under Sec. 178.30(a) or (b), the Administrator will determine
whether such a hearing on one or more of the objections is justified,
and will publish in the Federal Register the determination in an order
issued under Sec. 178.37 or a Notice of Hearing issued under Sec. 179.20
of this chapter. If some requests for a hearing are denied and others
pertaining to the same order or regulation are granted, the denial order
and the hearing notice may be combined into a single document and shall
be issued at the same time unless the Administrator for good cause
determines otherwise.
(b) A request for an evidentiary hearing will be granted if the
Administrator determines that the material submitted shows the
following:
(1) There is a genuine and substantial issue of fact for resolution
at a hearing. An evidentiary hearing will not be granted on issues of
policy or law.
(2) There is a reasonable possibility that available evidence
identified by the requestor would, if established, resolve one or more
of such issues in favor of the requestor, taking into account
uncontested claims or facts to the contrary. An evidentiary hearing will
not be granted on the basis of mere allegations, denials, or general
descriptions of positions and contentions, nor if the Administrator
concludes that the data and information submitted, even if accurate,
would be insufficient to justify the factual determination urged.
(3) Resolution of the factual issue(s) in the manner sought by the
person requesting the hearing would be adequate to justify the action
requested. An evidentiary hearing will not be granted on factual issues
that are not determinative with respect to the action requested. For
example, a hearing will not be granted if the Administrator concludes
that the action would be the same even if the factual issue were
resolved in the manner sought.
(c) Where appropriate, the Administrator will make rulings on any
issues raised by an objection which are necessary for resolution prior
to determining whether a request for an evidentiary hearing should be
granted.
Sec. 178.35 Modification or revocation of regulation.
(a) If the Administrator determines upon review of an objection or
request for hearing that the regulation in question should be modified
or revoked, the Administrator will by order publish appropriate
rulemaking documents in the Federal Register.
(b) The Administrator will provide an opportunity for objections and
requests for hearing on such rule to the extent required by law. Such
objections to the modification or revocation of the regulation, and
requests for a hearing on such objections, may be submitted under
Secs. 178.20 through 178.27.
(c) Objections and requests for hearing that are not affected by the
modification or revocation will remain on file and be acted upon in
accordance with this part.
Sec. 178.37 Order responding to objections on which a hearing was not requested or was denied.
(a) The Administrator will publish in the Federal Register an order
under FFDCA section 408(d)(5) or 409(f)(1) setting forth the
Administrator's determination on each denial of a request for a hearing,
and on each objection submitted under Sec. 178.20 on which:
(1) A hearing was not requested.
(2) A hearing was requested, but denied.
(b) Each order published under paragraph (a) of this section must
state the
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reasons for the Administrator's determination. If the order denies a
request for a hearing on the objection, the order also must state the
reason for that denial (e.g., why the request for a hearing did not
conform to Sec. 178.27, or why the request was denied under
Sec. 178.32).
(c) Each order published under paragraph (a) of this section must
state its effective date, which must not be earlier than the 90th day
after the order is published unless the order contains the
Administrator's findings as to the existence of emergency conditions
that necessitate an earlier effective date.
Subpart C--[Reserved]
Subpart D--Judicial Review
Sec. 178.65 Judicial review.
An order issued under Sec. 178.37 is final agency action reviewable
in the courts as provided by FFDCA sections 408(i) or 409(g)(1), as of
the date of entry of the order, which shall be determined in accordance
with Secs. 23.10 and 23.11 of this chapter. The failure to file a
petition for judicial review within the period ending on the 60th day
after the date of the entry of the order constitutes a waiver under
FFDCA section 408(i) or 409(g)(1) of the right to judicial review of the
order and of any regulation promulgated by the order.
Sec. 178.70 Administrative record.
(a) For purposes of judicial review, the record of an administrative
proceeding that culminates in an order under Sec. 178.37 consists of:
(1) The objection ruled on (and any request for hearing that was
included with the objection).
(2) Any order issued under Sec. 177.125 of this chapter to which the
objection related, and:
(i) Any regulation or petition denial that was the subject of that
order.
(ii) The petition to which such order responded.
(iii) Any amendment or supplement of the petition.
(iv) The data and information submitted in support of the petition.
(v) The notice of filing of the petition.
(3) Any order issued under Sec. 177.130 of this chapter to which the
objection related, the regulation that was the subject of that order,
and each related Notice of Proposed Rulemaking.
(4) Any order issued under Sec. 180.7(g) of this chapter to which
the objection related, and:
(i) Any regulation or petition denial that was the subject of that
order.
(ii) The petition to which such order responded.
(iii) Any amendment or supplement of the petition.
(iv) The data and information submitted in support of the petition.
(v) The notice of filing of the petition.
(5) Any order issued under Sec. 180.29(f) of this chapter to which
the objection related, the regulation that was the subject of that
order, and each related Notice of Proposed Rulemaking.
(6) Any comments submitted by members of the public in response to
the Notice of Filing or Notice of Proposed Rulemaking, any data or
information submitted as part of the comments, the Administrator's
response to comments and the documents or information relied on by the
Administrator in issuing the regulation or order.
(7) All other documents or information submitted to the docket for
the rulemaking in question.
(8) The order issued under Sec. 178.37.
(b) The record will be closed as of the date of the Administrator's
decision unless another date for closing of the record is specified in
the order issued under Sec. 178.37.