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

Summary

The Administrator can issue subpoenas (orders to appear and bring papers) and take sworn testimony to get information under sections 1315 or 1367(e). The Administrator can also give oaths. If someone shows that a document (other than effluent data) would reveal a trade secret, the Administrator will keep that part confidential under 18 U.S.C. 1905, but may share it with U.S. officials working on this law or when it is needed in a case. Witnesses get the same fees and travel pay as in U.S. courts. If a person ignores a subpoena, a U.S. district court can order them to comply and punish refusal as contempt. District courts can also issue subpoenas for information under sections 1314(b) and (c), and those records follow the same confidentiality rules. Any interested person directly affected can ask a U.S. Court of Appeals to review many Administrator actions (for example, standards, effluent limits, permits, and state permit program decisions listed under sections 1311, 1312, 1314, 1316, 1317, 1342, and 1345). The request must be filed within 120 days, unless the challenge is based on facts that arose after that time. Actions that could be reviewed this way cannot be reviewed later in enforcement proceedings. The court can award litigation costs, including reasonable lawyer and expert fees, to a prevailing or substantially prevailing party when appropriate. For final agency actions under section 1322(p), petitions follow that section’s rules and, subject to 1322(p)(7)(C)(v), must be filed in the U.S. Court of Appeals for the District of Columbia Circuit. If a court allows new evidence in a review where the agency record was made after notice and hearing, the court can have that evidence taken before the Administrator. The Administrator may then change or add findings and must file those with the returned evidence.

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