I.

No person may distribute, sell or use any pesticide unless the pesticide has been
registered with the Environmental Protection Agency.

* The statute does not define the term "pesticide," and EPA has not defined the term
by regulation.

1.   PestCo. sells "No More Beetles," a non-toxic Japanese beetle repellent that is made solely
     from organic materials.

2.  EPA notifies PestCo. that the agency believes that PestCo. may be violating the Pesticide
     Safety Act by selling "No More Beetles," and the agency holds a hearing to determine whether
     PestCo is violating the Act.

3.  At the hearing, the following testimony is presented:
 

	a	Laboratory tests indicate that "No More Beetles" does not contain any toxic or carcinogenic substances.
	b	No More Beetles" does not meet the accepted industry definition of a pesticide because it is made solely from organic materials.
	c	Webster's New English Dictionary defines the term pesticide as "any agent used to destroy or repel beetles, ... or other pests."
	d	"No More Beetles" is used to repel Japanese Beetles.

4.    On the basis of the testimony presented at the hearing, EPA concludes that "No More
        Beetles" is a pesticide, and the agency orders PestCo. to stop selling it.

5.    PestCo. appeals the agency's decision to court under the judicial review provisions
        of the Pesticide Safety Act.

D.    Questions to think about:  Is EPA's conclusion that "No More Beetles" is a pesticide
        a factual determination? a legal determination? a "mixed factual / legal determination?"

Section 1.

No person may distribute, sell or use any pesticide unless the pesticide has been registered
with the Environmental Protection Agency.

Section 2.

The prohibition in Section 1 does not apply to organic pesticides.

Section 3.

The Administrator may bring an action in federal district court to enjoin any violation of this Act.
 

 EPA promulgates a regulation that defines "organic pesticides" as follows: "Organic pesticides
 are pesticides that are formulated from organic substances and that will not adversely affect
 human health. The term does not include pesticides formulated outside of the United States."
 

The International Pesticide Company formulates organic pesticides in Brazil and imports them to
the United States. The IPC files a lawsuit challenging EPA's regulations.
 

What is the legal determination that IPC will challenge on review?
What standard of review will a court apply? Why?