[Code of Federal Regulations]

[Title 40, Volume 23]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR172.23]



[Page 257-258]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 172_EXPERIMENTAL USE PERMITS--Table of Contents

 

          Subpart B_State Issuance of Experimental Use Permits

 

Sec.  172.23  State plans.



    (a) Submission. (1) A State may, by submitting a State plan, request 

the Administrator to authorize the designated State agency to issue 

experimental use permits under section 5(f) of FIFRA.

    (2) A State shall request authorization to issue experimental use 

permits by having the Governor or Chief Executive Officer or his 

designated agent submit a State plan in writing to the Administrator.

    (b) Contents. A State plan shall include--

    (1) A designation of the State agency responsible for the 

administration of the State experimental use permit program.

    (2) An opinion of the State attorney general or the legal counsel of 

the designated State agency that the State has the requisite legal 

authorities as set forth in paragraph (c)(1)(i) of this section, 

accompanied by copies of the applicable State laws and regulations.

    (3) A description of procedures that the designated State agency 

will follow:



[[Page 258]]



    (i) To review experimental use permit applications, to ensure that 

experimental use permits will be issued in accordance with the terms and 

conditions of the authorization, FIFRA, and this subpart; and

    (ii) To supervise use pursuant to the permits, and to ensure that 

permits are used in accordance with their terms and conditions, FIFRA, 

and this subpart.

    (c) Criteria for EPA acceptance of State plan. (1) The Administrator 

shall grant authorization to issue experimental use permits if the State 

plan establishes that the designated State agency--

    (i) Has adequate legal authority under State law to implement the 

plan, including authority:

    (A) To issue experimental use permits, subject to limitations 

necessary for the protection of public health and the environment;

    (B) To supervise the use of a pesticide pursuant to an experimental 

use permit, as provided in Sec.  172.25(c);

    (C) To deny an experimental use permit if it determines that a 

permit is not justified, or that the issuance of the permit would cause 

unreasonable adverse effects on the environment;

    (D) To amend or revoke an experimental use permit, if the designated 

State agency finds that:

    (1) The terms and conditions of the permit are being violated, or 

are inadequate to avoid unreasonable adverse effects on the environment;

    (2) Any required tolerance under the Federal Food, Drug, and 

Cosmetic Act (21 U.S.C. 301 et seq.) has been revoked by EPA, or any 

exemption from the requirement for tolerance has been withdrawn by EPA; 

or

    (3) A failure by the permittee or any cooperator to meet any other 

provision of FIFRA or this subpart has occurred;

    (E) To enter, by consent or by warrant or by other legal means, in 

connection with an experimental use permit, a permittee's or 

cooperator's premises at reasonable times in order to sample or inspect 

any pesticides used or property treated, to inspect any equipment or 

records kept, or to observe any activities conducted, as necessary to 

enforce compliance with State law, the terms of the permit, and this 

subpart;

    (F) To comply in all other respects with the requirements of this 

subpart, including labeling requirements; and

    (ii) Utilizes procedures for the review of each permit which are 

adequate to ensure that the State program will be administered in 

accordance with the purposes of FIFRA and this subpart.

    (2) After receiving a State plan, EPA shall publish a Federal 

Register notice announcing the fact and inviting interested parties to 

comment thereon.

    (d) Approval, rejection, and revocation. (1) EPA shall approve or 

reject the State plan within 90 days after receipt of all information 

necessary for final review of the plan, including copies of effective 

statutes and regulations which satisfy the requirements of this subpart.

    (2) The Administrator may at any time revoke the authorization of a 

State to issue experimental use permits if he determines that the 

designated State agency has not complied with the requirements of this 

subpart or with the terms and conditions of such authorization. State 

experimental use permits issued prior to the revocation of authority 

shall remain valid until they expire or until three years from the date 

of revocation of the State's authority, whichever comes first, unless 

sooner revoked by EPA under Sec.  172.26(c) of this subpart.

    (3) Notices of approval, rejection, and revocation shall be 

published in the Federal Register, as well as the basis for such 

approval, rejection, or revocation.

    (4) Prior to rejecting or revoking authorization, the Administrator 

shall notify the State in writing of his intention to take such action, 

along with the basis for such action, and shall afford the State the 

opportunity for a hearing, and time to take corrective action.