42 U.S.C. § 6305 — Citizen suits

Page 6750 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6304 (6) For purposes of applying the preceding pro- visions of this subsection in the case of the as- sessment of a penalty by the Commission for a violation of paragraphs (1) and (2) of section 6302 of this title, references in such provisions to ‘‘Secretary’’ and ‘‘Department of Energy’’ shall be considered to be references to the ‘‘Commis- sion’’. (Pub. L. 94–163, title III, § 333, Dec. 22, 1975, 89 Stat. 929; Pub. L. 95–619, title IV, §§ 423, 425(e), title VI, § 691(b)(2), Nov. 9, 1978, 92 Stat. 3262, 3266, 3288; Pub. L. 100–12, § 11(b)(6), Mar. 17, 1987, 101 Stat. 125; Pub. L. 114–11, title II, § 201(3), Apr. 30, 2015, 129 Stat. 189.) Editorial Notes AMENDMENTS 2015—Subsec. (a). Pub. L. 114–11 substituted ‘‘para- graph (5), (6), (7), or (8) of section 6302(a)’’ for ‘‘section 6302(a)(5)’’ and ‘‘paragraph (1), (2), (5), (6), (7), or (8) of section 6302(a)’’ for ‘‘paragraph (1), (2), or (5) of section 6302(a)’’. 1987—Pub. L. 100–12 inserted headings for subsecs. (a) to (d). 1978—Subsec. (a). Pub. L. 95–619, §§ 425(e)(1), 691(b)(2), substituted ‘‘Secretary’’ for ‘‘Administrator’’, meaning Administrator of the Federal Energy Administration, wherever appearing, and ‘‘subsection (c)’’ for ‘‘sub- section (b)’’. Subsec. (c). Pub. L. 95–619, § 425(e)(2), substituted ‘‘section 6293(c) of this title’’ for ‘‘section 6293(d)(2) of this title’’ and inserted provision making an exception from the unfair or deceptive act or practice rule. Subsec. (d). Pub. L. 95–619, § 423, added subsec. (d). § 6304. Injunctive enforcement The United States district courts shall have jurisdiction to restrain (1) any violation of sec- tion 6302 of this title and (2) any person from distributing in commerce any covered product which does not comply with an applicable rule under section 6294 or 6295 of this title. Any such action shall be brought by the Commission, ex- cept that any such action to restrain any viola- tion of section 6302(a)(3) of this title which re- lates to requirements prescribed by the Sec- retary, any violation of section 6302(a)(4) of this title which relates to requests of the Secretary under section 6296(b)(2) of this title, or any vio- lation of paragraph (5), (6), (7), or (8) of section 6302(a) of this title shall be brought by the Sec- retary. Any such action to restrain any person from distributing in commerce a general service incandescent lamp that does not comply with the applicable standard established under sec- tion 6295(i) of this title or an adapter prohibited under section 6302(a)(7) of this title may also be brought by the attorney general of a State in the name of the State. Any such action may be brought in any United States district court for a district wherein any act, omission, or trans- action constituting the violation occurred, or in such court for the district wherein the defend- ant is found or transacts business. In any action under this section, process may be served on a defendant in any other district in which the de- fendant resides or may be found. (Pub. L. 94–163, title III, § 334, Dec. 22, 1975, 89 Stat. 929; Pub. L. 95–619, title VI, § 691(b)(2), Nov. 9, 1978, 92 Stat. 3288; Pub. L. 110–140, title III, § 321(f), Dec. 19, 2007, 121 Stat. 1586; Pub. L. 114–11, title II, § 201(4), Apr. 30, 2015, 129 Stat. 189.) Editorial Notes AMENDMENTS 2015—Pub. L. 114–11 substituted ‘‘paragraph (5), (6), (7), or (8) of section 6302(a)’’ for ‘‘section 6302(a)(5)’’ and ‘‘section 6302(a)(7)’’ for ‘‘section 6302(a)(6)’’. 2007—Pub. L. 110–140 inserted after second sentence ‘‘Any such action to restrain any person from distrib- uting in commerce a general service incandescent lamp that does not comply with the applicable standard es- tablished under section 6295(i) of this title or an adapt- er prohibited under section 6302(a)(6) of this title may also be brought by the attorney general of a State in the name of the State.’’ 1978—Pub. L. 95–619 substituted ‘‘Secretary’’ for ‘‘Ad- ministrator’’, meaning Administrator of the Federal Energy Administration, wherever appearing. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2007 AMENDMENT Amendment by Pub. L. 110–140 effective on the date that is 1 day after Dec. 19, 2007, see section 1601 of Pub. L. 110–140, set out as an Effective Date note under sec- tion 1824 of Title 2, The Congress. § 6305. Citizen suits (a) Civil actions; jurisdiction Except as otherwise provided in subsection (b), any person may commence a civil action against— (1) any manufacturer or private labeler who is alleged to be in violation of any provision of this part or any rule under this part; (2) any Federal agency which has a responsi- bility under this part where there is an alleged failure of such agency to perform any act or duty under this part which is not discre- tionary; or (3) the Secretary in any case in which there is an alleged failure of the Secretary to com- ply with a nondiscretionary duty to issue a proposed or final rule according to the sched- ules set forth in section 6295 of this title. The United States district courts shall have ju- risdiction, without regard to the amount in con- troversy or the citizenship of the parties, to en- force such provision or rule, or order such Fed- eral agency to perform such act or duty, as the case may be. The courts shall advance on the docket, and expedite the disposition of, all causes filed therein pursuant to paragraph (3) of this subsection. If the court finds that the Sec- retary has failed to comply with a deadline es- tablished in section 6295 of this title, the court shall have jurisdiction to order appropriate re- lief, including relief that will ensure the Sec- retary’s compliance with future deadlines for the same covered product. (b) Limitation No action may be commenced— (1) under subsection (a)(1)— (A) prior to 60 days after the date on which the plaintiff has given notice of the viola- tion (i) to the Secretary, (ii) to the Commis- sion, and (iii) to any alleged violator of such provision or rule, or (B) if the Commission has commenced and is diligently prosecuting a civil action to re- Page 6751 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6306 quire compliance with such provision or rule, but, in any such action, any person may intervene as a matter of right. (2) under subsection (a)(2) prior to 60 days after the date on which the plaintiff has given notice of such action to the Secretary and Commission. Notice under this subsection shall be given in such manner as the Commission shall prescribe by rule. (c) Right to intervene In such action under this section, the Sec- retary or the Commission (or both), if not a party, may intervene as a matter of right. (d) Award of costs of litigation The court, in issuing any final order in any ac- tion brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. (e) Preservation of other relief Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek en- forcement of this part or any rule thereunder, or to seek any other relief (including relief against the Secretary or the Commission). (f) Compliance in good faith For purposes of this section, if a manufacturer or private labeler complied in good faith with a rule under this part, then he shall not be deemed to have violated any provision of this part by reason of the alleged invalidity of such rule. (Pub. L. 94–163, title III, § 335, Dec. 22, 1975, 89 Stat. 930; Pub. L. 95–619, title IV, § 425(f), title VI, § 691(b)(2), Nov. 9, 1978, 92 Stat. 3266, 3288; Pub. L. 100–12, §§ 8, 11(b)(7), Mar. 17, 1987, 101 Stat. 122, 126.) Editorial Notes AMENDMENTS 1987—Subsec. (a). Pub. L. 100–12, § 8, added par. (3) and inserted at end ‘‘The courts shall advance on the dock- et, and expedite the disposition of, all causes filed therein pursuant to paragraph (3) of this subsection. If the court finds that the Secretary has failed to comply with a deadline established in section 6295 of this title, the court shall have jurisdiction to order appropriate relief, including relief that will ensure the Secretary’s compliance with future deadlines for the same covered product.’’ Subsecs. (b) to (f). Pub. L. 100–12, § 11(b)(7), inserted headings for subsecs. (b) to (f). 1978—Subsec. (a). Pub. L. 95–619, § 425(f), struck out provision in par. (1) which excluded sections 6295 and 6302(a)(5) of this title and rules thereunder, struck out provision in par. (2) which excluded any act or duty under section 6295 or 6302(a)(5) of this title, and inserted provision giving district courts jurisdiction to order Federal agencies to perform particular acts or duties under this part. Subsecs. (b), (c), (e). Pub. L. 95–619, § 691(b)(2), sub- stituted ‘‘Secretary’’ for ‘‘Administrator’’, meaning Administrator of the Federal Energy Administration, wherever appearing. § 6306. Administrative procedure and judicial re- view (a) Procedure for prescription of rules (1) In addition to the requirements of section 553 of title 5, rules prescribed under section 6293, 6294, 6295, 6297, or 6298 of this title shall afford interested persons an opportunity to present written and oral data, views, and arguments with respect to any proposed rule. (2) In the case of a rule prescribed under sec- tion 6295 of this title, the Secretary shall, by means of conferences or other informal proce- dures, afford any interested person an oppor- tunity to question— (A) other interested persons who have made oral presentations; and (B) employees of the United States who have made written or oral presentations with re- spect to disputed issues of material fact. Such opportunity shall be afforded to the extent the Secretary determines that questioning pur- suant to such procedures is likely to result in a more timely and effective resolution of such issues. (3) A transcript shall be kept of any oral pres- entations made under this subsection. (b) Petition by persons adversely affected by rules; effect on other laws (1) Any person who will be adversely affected by a rule prescribed under section 6293, 6294, or 6295 of this title may, at any time within 60 days after the date on which such rule is prescribed, file a petition with the United States court of appeals for the circuit in which such person re- sides or has his principal place of business, for judicial review of such rule. A copy of the peti- tion shall be transmitted by the clerk of the court to the agency which prescribed the rule. Such agency shall file in the court the written submissions to, and transcript of, the pro- ceedings on which the rule was based, as pro- vided in section 2112 of title 28. (2) Upon the filing of the petition referred to in paragraph (1), the court shall have jurisdic- tion to review the rule in accordance with chap- ter 7 of title 5 and to grant appropriate relief as provided in such chapter. No rule under section 6293, 6294, or 6295 of this title may be affirmed unless supported by substantial evidence. (3) The judgment of the court affirming or set- ting aside, in whole or in part, any such rule shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28. (4) The remedies provided for in this sub- section shall be in addition to, and not in substi- tution for, any other remedies provided by law. (5) The procedures applicable under this part shall not— (A) be considered to be modified or affected by any other provision of law unless such other provision specifically amends this part (or provisions of law cited herein); or (B) be considered to be superseded by any other provision of law unless such other provi- sion does so in specific terms by referring to this part and declaring that such provision su- persedes, in whole or in part, the procedures of this part.