ELR Citation: ELR 20797
No(s). 85-795 (D.D.C. May 10, 1985)

The court holds that a mailgram from the Environmental Protection Agency (EPA) to Ciba-Geigy advising the company that EPA will consider the pesticide simazine mislabeled unless the company adds a groundwater advisory is not final agency action under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The mailgram has no legal effect, but is only EPA's interpretation of FIFRA misbranding provisions.Non-conforming products would be in violation of the misbrandig provisions, not the mailgram. The court applies the three-part test for final agency action, holding that there are an array of further agency procedures for enforcement of the misbranding provisions, the mailgram has no legal force, and judicial review would be inefficient, both because it would unduly interrupt the normal agency procedures, and because it is impossible to determine which court should have jurisdiction until EPA chooses an enforcement route.

Counsel for Plaintiff
Kenneth W. Weinstein
McKenna, Conner & Cuneo
1575 Eye St. NW, Washington DC 20005
(202) 789-7500

Counsel for Defendant
John K. Cermak
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4548