(c) Scope of appeal or review. Except when the Regional Administrator determines that additional issues should be argued, the appeal of the initial decision shall be limited to the issues raised by appellant. Where it is determined that additional issues should be argued, counsel for the parties shall be given reasonable written notice of such determination to permit preparation of adequate argument.

(d) Argument before the Regional Administrator. Failure of a party to request oral argument on the exceptions filed shall constitute a waiver of oral argument. The Regional Administrator may, nonetheless, sua sponte, set a matter for oral argument. The time and place for such oral argument shall be assigned after giving consideration to the convenience of the parties.

Subpart F-Final Order

§ 168.51 Appeal from or review of initial

decisions. (a) Exceptions and request for oral argument. (1) Within twenty (20) days after service of the Administrative Law Judge's initial decision, any party may take exception to any matter set forth in such decision or to any adverse order or ruling to which he objected during the hearing and may appeal such exceptions to the Regional Administrator. Appeal may be made by filing exceptions in writing with the Regional Hearing Clerk. Such exceptions shall contain alternative findings of fact, conclusions regarding material issues of law, fact or discretion and a proposed order together with references to the relevant pages of the record and initial decision. A copy of each such document taking exception to the initial decision shall be served upon each other party and amicus curiae. Within the same period of time each party filing exceptions and amicus curiae shall file with the Regional Hearing Clerk and shall serve upon all parties a brief concerning each of the exceptions being appealed. The party shall include in its brief, page references to the relevant portions of the record and to the Administrative Law Judge's initial decision.

(2) Within ten (10) days of the service of exceptions and briefs under subparagraph (1) of this paragraph, any other party or amicus curiae may file and serve a reply brief responding to exceptions or arguments raised by any party, together with references to the relevant portions of the record, initial decision, or opposing brief. Reply briefs shall not, however, raise additional exceptions.

(b) Sua sponte review by Regional Administrator. Whenever the Regional Administrator determines sua sponte to review an initial decision, notice of such intention shall be served upon the parties by the Regional Hearing Clerk within thirty (30) days after the date of service of the initial decision. Such notice shall include a statement of issues to be briefed by the parties and a time schedule for the service and filing of briefs.

$ 168.60 Final order.

(a) Contents of the final order. As soon as practicable after service upon the Regional Administrator of the ini. tial decision of the Administrative Law Judge, the Regional Administrator shall issue his final order. Such final order shall include findings of fact, conclusions regarding material issues of law, fact or discretion as well as reasons therefor, and an order assessing a civil penalty. Such final order may accept or reject all or part of the initial decision of the Administrative Law Judge.

(b) Evaluation of civil penalty. The final order of the Regional Administrator shall consider the appropriateness of the penalty proposed to be assessed in the consent agreement (8 168.35(c)), default order (8 168.34(b)) or the initial decision (88 168.37 or 168.46) out of which the final order originates.

(1) In evaluating the appropriateness of such proposed penalty, the Regional Administrator must consider, (i) the gravity of the violation, (ii) the size of respondent's business, and (iii) the effect of such proposed penalty on respondent's ability to continue in business.

(2) In evaluating the gravity of the violation, the Regional Administrator

shall also consider (i) respondent's history of compliance with the Act, or its predecessor statute and (ii) any evidence of good faith or lack thereof.

(3) In determining the appropriate penalty to be assessed, the Regional Administrator may consult and rely upon the Guidelines for the Assessment of Civil Penalties, published as an Appendix to these rules of practice. The Regional Administrator may, at his discretion increase or decrease the assessed penalty from the amount recommended to be assessed in the initial decision, or in the Guidelines for the Assessment of Civil Penalties.

(c) Payment of a civil penalty. (1) Except as otherwise provided in conjunction with (i) motions made pursuant to Subpart G of these rules of practice, or (ii) petitions seeking judicial review of a final order of the Regional Administrator, payment of the full amount of the civil penalty assessed in the final order shall be made within sixty (60) days of service upon respondent of the final order. Such payı nt shall be made by forwarding to the Regional Hearing Clerk a cashier's check or certified check in the amount of the penalty assessed in such final order. Such check shall be payable to the United States of America.

(2) Failure to make timely payment of the penalty assessed in the final order shall result in reference of the matter to the Attorney General who shall recover such amount by action in the appropriate United States District Court pursuant to section 14(a)(4) of the Act.

cific grounds upon which relief is sought.

(b) Motion to reopen hearing. A motion to reopen a hearing for the purpose of taking further evidence may be filed at any time after the service of the initial decision of the Administrative Law Judge and prior to the issuance of the Regional Administrator's final order. Each such motion shall state briefly the nature and purpose of the evidence to be adduced, shall show that such evidence is not cumulative, and shall set forth a good reason why such evidence was not adduced at a hearing.

(c) Motion to rehear, reargue, or reconsider. Motions to rehear or reargue any matter related to a hearing or to reconsider the final order shall be filed within ten (10) days after the date of service of the final order. Every such motion must state specifically the matters claimed to have been erroneously decided. The nature of any alleged error must be briefly stated.

$ 168.71 Procedure for disposition of mo

tions. Within ten (10) days following the service of any motion provided for in $ 168.70, any other party to the proceeding may file with the Regional Hearing Clerk and serve on all other parties an answer thereto. As soon as practicable thereafter, the Regional Administrator shall announce his intent to grant

or to deny such motion. Unless the Regional Administrator determines otherwise, implementation of the final order shall not be stayed pending the decision to grant or to deny the motion. The conduct of any proceeding which may be required as a result of the granting of any motion allowed in this section shall be governed by the provisions of the applicable section of these rules.

Subpart G-Motion to Reconsider

$ 168.70 Motion to reopen hearings; to

rehear or reargue proceedings; or to re

consider a final order. (a) Filing and service. A motion to reopen a hearing to take further evidence, to rehear or reargue any matter related to such proceeding, or to reconsider any final order, must be made by motion to the Regional Administrator, in accordance with $ 168.32(a), and filed with the Regional Hearing Clerk. Every such motion must state the spe

PART 169-BOOKS AND RECORDS

OF PESTICIDE PRODUCTION AND DISTRIBUTION

Sec. 169.1 Definitions. 169.2 Maintenance of records. 169.3 Inspection.

AUTHORITY: Secs. 8 and 25, Federal Insecticide, Fungicide, and Rodenticide Act, as amended by the Federal Environmental Pesticide Control Act of 1972 (86 Stat. 987, 997).

8 169.1 Definitions.

Terms used in this part shall have the meanings set forth for such terms in the Federal Insecticide, Fungicide, and Rodenticide Act as amended. In addition, as used in this part, the following terms shall have the meanings set forth below:

(a) Amount of pesticide. The term "amount of pesticide" means the weight or volume of the pesticide, expressed as weight for solid or semisolid products and as weight or volume for liquid products.

(b) Batch. The term “batch” means a quantity of a pesticide product made in one operation or lot or if made in a continuous or semicontinuous process or cycle, the quantity produced during an interval of time to be specified by the producer.

(c) Device. The term "device" means any device or class of device as defined by the Act and determined by the Administrator to be subject to the provisions of the Act.

(d) Inability. The term "inability" means the incapacity of any person to maintain, furnish or permit access to any records under this Act and regulations, where such incapacity arises out of causes beyond the control and without the fault or negligence of such person. Such causes may include, but are not restricted to acts of God or of the public enemy, fires, floods, epidemics, quarantine restrictions, strikes and unusually severe weather but in every case the failure must be beyond the control and without the fault or negligence of said person.

(e) Producer. The term “producer” means the person who manufactures, prepares, compounds, propagates, or processes any pesticide or device. (39 FR 33514, Sept. 18, 1974)

mental use permit, shall maintain the following records:

(a) Records showing the product name, EPA Registration Number, Experimental Permit Number if the pes. ticide is produced under an Experimental Use Permit, amounts per batch and batch identification (numbers, letters, etc.) of all pesticides produced. In cases where a pesticide is not registered, is not the subject of an application for registration, or is not produced under an Experimental Use Permit, the records shall also show the complete formula. The batch identifi. cation shall appear on all production control records. These records shall be retained for a period of two (2) years.

(b) Records showing the brand names and quantities of devices produced. These records shall be retained for a period of two (2) years.

(c) Records showing the following information regarding the receipt of all pesticides and devices:

(1) Brand name of pesticide or device.

(2) Name and address of shipper.
(3) Name of delivering carrier.
(4) Date received, and

(5) Quantities received. These records are not intended to cover receipt of pesticides used for in-plant maintenance, extermination or sanitation programs, etc. Shipping and receiving documents such as invoices, freight bills, receiving tickets, etc., which provide the required information will be considered satisfactory for the purposes of this section. These records shall be retained for a period of two (2) years.

(d) Records showing the following information regarding the shipment of all pesticides and devices.

(1) Brand name of pesticide or device.

(2) Name and address of consignee and where the pesticide is produced pursuant to experimental use permit the information required under Section 5 and any regulations promulgated thereto regarding the distribution of such pesticides.

(3) Name of originating carrier.

(4) Date shipped or delivered for shipment, and

an

$ 169.2 Maintenance of records.

All producers of pesticides or devices subject to this Act, including pesticides produced pursuant to an experi

§ 169.3 Inspection.

(a) Producers. Any producer of any pesticide or device subject to this Act shall, upon request of any officer or employee of the Agency or of any State or political subdivision, duly designated by the Administrator, furnish or permit such person at all reasonable times to have access to and to copy all records required to be maintained by this part. Such inspection I will be conducted in accordance with procedures detailed in section 9(a) of the Act.

(b) Distributors, carriers, dealers, etc. Any distributor, carrier, dealer, or any other person who sells or offers for sale, delivers or offers for delivery any pesticide or device subject to this Act, shall, upon request of any officer or employee of the Agency or of any State or political subdivision, duly designated by the Administrator, furnish or permit such person at all reasonable times to have access to and copy all records showing the delivery or holding of such pesticide or device, including the quantity, the date of shipment and receipt, and the name and address of the consignor and consignee, and any guarantee received pursuant to section 12(b)(1) of the Act.

(c) Availability of information. The availability of the public of information provided to, or otherwise obtained by, the Administrator under this Part shall be governed by Part 2 of this chapter.

(d) Inability. (1) In the event of the inability of any person to produce records containing the information required to be maintained, furnished for inspection, or given access to, all other records and information regarding the same shall be provided.

(2) Where no such inability exists and any such person fails to give access to and permit copying of such records as required, such failure shall be deemed a refusal to keep records required or a refusal to allow the inspection of any such records or both.

[39 FR 33514, Sept. 18, 1974, as amended at 41 FR 36918, Sept. 1, 1976]