§1369 — Title 33 Navigation and Navigable Waters | U.S. Code

Summary

The Administrator can require people to come to hearings, give testimony, and hand over papers, books, and documents to get information or do certain duties. The Administrator can also swear witnesses. Except for pollution discharge data, a business can ask that records that would reveal trade secrets or secret processes be kept confidential. Those secret records can still be shown to U.S. officials who need them to carry out the law or used in court cases under this law. People who are subpoenaed get the same fees and travel pay as witnesses in U.S. courts. If someone refuses a subpoena, a U.S. district court where that person lives, works, or can be found can order them to comply. If they still refuse, the court can hold them in contempt. The district courts can also issue subpoenas to get information for certain agency duties; the same confidentiality rules apply to documents obtained this way. Any interested person can ask a U.S. Court of Appeals to review many final agency actions—like setting standards, making key determinations, approving or denying permit programs, issuing or denying permits, or setting effluent limits—if the action directly affects them. That review must be requested within 120 days of the agency’s action, unless the challenge is based only on grounds that arose after those 120 days. Actions that could have been reviewed this way cannot later be challenged in enforcement court cases. The appeals court may award litigation costs, including reasonable lawyer and expert fees, to a prevailing or substantially prevailing party when appropriate. For certain final actions under a special rule (section 1322(p)), petitions for review are handled under that rule and, in many cases, must be filed in the U.S. Court of Appeals for the D.C. Circuit. If a court allows new evidence in a review case, it can send that evidence back to the Administrator to take and consider; the Administrator can then change findings and must file any new findings and recommendations.

Title 33, §1369

Navigation and Navigable Waters — Source: USLM XML via OLRC

(a)(1)For purposes of obtaining information under section 1315 of this title, or carrying out section 1367(e) of this title, the Administrator may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and he may administer oaths. Except for effluent data, upon a showing satisfactory to the Administrator that such papers, books, documents, or information or particular part thereof, if made public, would divulge trade secrets or secret processes, the Administrator shall consider such record, report, or information or particular portion thereof confidential in accordance with the purposes of section 1905 of title 18, except that such paper, book, document, or information may be disclosed to other officers, employees, or authorized representatives of the United States concerned with carrying out this chapter, or when relevant in any proceeding under this chapter. Witnesses summoned shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. In case of contumacy or refusal to obey a subpena served upon any person under this subsection, the district court of the United States for any district in which such person is found or resides or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the Administrator, to appear and produce papers, books, and documents before the Administrator, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof.

(2)The district courts of the United States are authorized, upon application by the Administrator, to issue subpenas for attendance and testimony of witnesses and the production of relevant papers, books, and documents, for purposes of obtaining information under section 1314(b) and (c) of this title. Any papers, books, documents, or other information or part thereof, obtained by reason of such a subpena shall be subject to the same requirements as are provided in paragraph (1) of this subsection.

(b)(1)Review of the Administrator’s action (A) in promulgating any standard of performance under section 1316 of this title, (B) in making any determination pursuant to section 1316(b)(1)(C) of this title, (C) in promulgating any effluent standard, prohibition, or pretreatment standard under section 1317 of this title, (D) in making any determination as to a State permit program submitted under section 1342(b) of this title, (E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title, (F) in issuing or denying any permit under section 1342 of this title, and (G) in promulgating any individual control strategy under section 1314(l) of this title, may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts business which is directly affected by such action upon application by such person. Any such application shall be made within 120 days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such 120th day.

(2)Action of the Administrator with respect to which review could have been obtained under paragraph (1) of this subsection shall not be subject to judicial review in any civil or criminal proceeding for enforcement.

(3)In any judicial proceeding under this subsection, the court may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party whenever it determines that such award is appropriate.

(4)(A)Except as provided in subparagraph (B), any interested person may file a petition for review of a final agency action under section 1322(p) of this title of the Administrator or the Secretary of the department in which the Coast Guard is operating in accordance with the requirements of this subsection.

(B)Subject to section 1322(p)(7)(C)(v) of this title, a petition for review of a final agency action under section 1322(p) of this title of the Administrator or the Secretary of the department in which the Coast Guard is operating may be filed only in the United States Court of Appeals for the District of Columbia Circuit.

(c)In any judicial proceeding brought under subsection (b) of this section in which review is sought of a determination under this chapter required to be made on the record after notice and opportunity for hearing, if any party applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Administrator, the court may order such additional evidence (and evidence in rebuttal thereof) to be taken before the Administrator, in such manner and upon such terms and conditions as the court may deem proper. The Administrator may modify his findings as to the facts, or make new findings, by reason of the additional evidence so taken and he shall file such modified or new findings, and his recommendation, if any, for the modification or setting aside of his original determination, with the return of such additional evidence.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2018—Subsec. (b)(4). Pub. L. 115–282 added par. (4). 1988—Subsec. (b)(3), (4). Pub. L. 100–236 redesignated par. (4) as (3) and struck out former par. (3) relating to venue, which provided for selection procedure in subpar. (A), administrative provisions in subpar. (B), and transfers in subpar. (C). 1987—Subsec. (b)(1). Pub. L. 100–4, §§ 308(b), 406(d)(3), 505(a), substituted “transacts business which is directly affected by such action” for “transacts such business”, “120” for “ninety”, and “120th” for “ninetieth”, substituted “1316, or 1345 of this title” for “or 1316 of this title” in cl. (E), and added cl. (G). Subsec. (b)(3), (4). Pub. L. 100–4, § 505(b), added pars. (3) and (4). 1973—Subsec. (b)(1)(C). Pub. L. 93–207 substituted “pretreatment” for “treatment”.

Statutory Notes and Related Subsidiaries

Effective Date

of 1988 AmendmentAmendment by Pub. L. 100–236 effective 180 days after Jan. 8, 1988, see section 3 of Pub. L. 100–236, set out as a note under section 2112 of Title 28, Judiciary and Judicial Procedure.

§1369 Administrative procedure and judicial review