33 U.S.C. § 1369 — Administrative procedure and judicial re-

Page 589 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1369 loans, see Ex. Ord. No. 11738, Sept. 10, 1973, 38 F.R. 25161, set out as a note under section 7606 of Title 42, The Public Health and Welfare. § 1369. Administrative procedure and judicial re- view (a) Subpenas (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 testi- mony of witnesses and the production of rel- evant 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 informa- tion 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 pur- poses of section 1905 of title 18, except that such paper, book, document, or information may be disclosed to other officers, employees, or author- ized representatives of the United States con- cerned 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 contu- macy 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 trans- acts 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 pa- pers, books, and documents before the Adminis- trator, 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 Adminis- trator, to issue subpenas for attendance and tes- timony of witnesses and the production of rel- evant papers, books, and documents, for pur- poses of obtaining information under sections 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 pro- vided in paragraph (1) of this subsection. (b) Review of Administrator’s actions; selection of court; fees (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 promul- gating any effluent limitation or other limita- tion 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 promul- gating 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 dis- trict in which such person resides or transacts business which is directly affected by such ac- tion upon application by such person. Any such application shall be made within 120 days from the date of such determination, approval, pro- mulgation, 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 sub- ject to judicial review in any civil or criminal proceeding for enforcement. (3) AWARD OF FEES.—In any judicial proceeding under this subsection, the court may award costs of litigation (including reasonable attor- ney and expert witness fees) to any prevailing or substantially prevailing party whenever it de- termines that such award is appropriate. (4) DISCHARGES INCIDENTAL TO NORMAL OPER- ATION OF VESSELS.— (A) IN GENERAL.—Except as provided in sub- paragraph (B), any interested person may file a petition for review of a final agency action under section 1322(p) of this title of the Ad- ministrator or the Secretary of the depart- ment in which the Coast Guard is operating in accordance with the requirements of this sub- section. (B) VENUE EXCEPTION.—Subject to section 1322(p)(7)(C)(v) of this title, a petition for re- view 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 Dis- trict of Columbia Circuit. (c) Additional evidence In any judicial proceeding brought under sub- section (b) of this section in which review is sought of a determination under this chapter re- quired to be made on the record after notice and opportunity for hearing, if any party applies to the court for leave to adduce additional evi- dence, and shows to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the fail- ure to adduce such evidence in the proceeding before the Administrator, the court may order such additional evidence (and evidence in rebut- tal thereof) to be taken before the Adminis- trator, 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 ad- ditional evidence so taken and he shall file such modified or new findings, and his recommenda- tion, if any, for the modification or setting aside of his original determination, with the return of such additional evidence. (June 30, 1948, ch. 758, title V, § 509, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 891; amended Pub. L. 93–207, § 1(6), Dec. 28, 1973, 87 Stat. 906; Pub. L. 100–4, title III, § 308(b), title IV, § 406(d)(3), title V, § 505(a), (b), Feb. 4, 1987, 101 Stat. 39, 73, 75; Pub. L. 100–236, § 2, Jan. 8, 1988, Page 590 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1370 101 Stat. 1732; Pub. L. 115–282, title IX, § 903(c)(4), Dec. 4, 2018, 132 Stat. 4356.) 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 sub- par. (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’’, sub- stituted ‘‘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 AMENDMENT Amendment 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 Ju- dicial Procedure. § 1370. State authority Except as expressly provided in this chapter, nothing in this chapter shall (1) preclude or deny the right of any State or political subdivi- sion thereof or interstate agency to adopt or en- force (A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abatement of pollution; ex- cept that if an effluent limitation, or other limi- tation, effluent standard, prohibition, pretreatment standard, or standard of perform- ance is in effect under this chapter, such State or political subdivision or interstate agency may not adopt or enforce any effluent limita- tion, or other limitation, effluent standard, pro- hibition, pretreatment standard, or standard of performance which is less stringent than the ef- fluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance under this chapter; or (2) be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States. (June 30, 1948, ch. 758, title V, § 510, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 893.) § 1371. Authority under other laws and regula- tions (a) Impairment of authority or functions of offi- cials and agencies; treaty provisions This chapter shall not be construed as (1) lim- iting the authority or functions of any officer or agency of the United States under any other law or regulation not inconsistent with this chapter; (2) affecting or impairing the authority of the Secretary of the Army (A) to maintain naviga- tion or (B) under the Act of March 3, 1899, (30 Stat. 1112); except that any permit issued under section 1344 of this title shall be conclusive as to the effect on water quality of any discharge re- sulting from any activity subject to section 403 of this title, or (3) affecting or impairing the provisions of any treaty of the United States. (b) Discharges of pollutants into navigable wa- ters Discharges of pollutants into the navigable waters subject to the Rivers and Harbors Act of 1910 (36 Stat. 593; 33 U.S.C. 421) and the Super- visory Harbors Act of 1888 (25 Stat. 209; 33 U.S.C. 441–451b) shall be regulated pursuant to this chapter, and not subject to such Act of 1910 and the Act of 1888 except as to effect on navigation and anchorage. (c) Action of the Administrator deemed major Federal action; construction of the National Environmental Policy Act of 1969 (1) Except for the provision of Federal finan- cial assistance for the purpose of assisting the construction of publicly owned treatment works as authorized by section 1281 of this title, and the issuance of a permit under section 1342 of this title for the discharge of any pollutant by a new source as defined in section 1316 of this title, no action of the Administrator taken pur- suant to this chapter shall be deemed a major Federal action significantly affecting the qual- ity of the human environment within the mean- ing of the National Environmental Policy Act of 1969 (83 Stat. 852) [42 U.S.C. 4321 et seq.]; and (2) Nothing in the National Environmental Policy Act of 1969 (83 Stat. 852) shall be deemed to— (A) authorize any Federal agency authorized to license or permit the conduct of any activ- ity which may result in the discharge of a pol- lutant into the navigable waters to review any effluent limitation or other requirement es- tablished pursuant to this chapter or the ade- quacy of any certification under section 1341 of this title; or (B) authorize any such agency to impose, as a condition precedent to the issuance of any license or permit, any effluent limitation other than any such limitation established pursuant to this chapter. (d) Consideration of international water pollu- tion control agreements Notwithstanding this chapter or any other provision of law, the Administrator (1) shall not require any State to consider in the develop- ment of the ranking in order of priority of needs for the construction of treatment works (as de- fined in subchapter II of this chapter), any water pollution control agreement which may have been entered into between the United States and any other nation, and (2) shall not consider any such agreement in the approval of any such pri- ority ranking. (June 30, 1948, ch. 758, title V, § 511, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 893; amended Pub. L. 93–243, § 3, Jan. 2, 1974, 87 Stat. 1069.) Editorial Notes REFERENCES IN TEXT Act of March 3, 1899, referred to in subsec. (a), is act Mar. 3, 1899, ch. 425, 30 Stat. 1121, which enacted sec- tions 401, 403, 404, 406, 407, 408, 409, 411 to 416, 418, 502, 549, and 687 of this title and amended section 686 of this