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U.S. Code as of:
01/19/04
Section 2618. Judicial review
(a) In general
(1)(A) Not later than 60 days after the date of the promulgation
of a rule under section 2603(a), 2604(a)(2), 2604(b)(4), 2605(a),
2605(e), or 2607 of this title, or under subchapter II or IV of
this chapter, any person may file a petition for judicial review of
such rule with the United States Court of Appeals for the District
of Columbia Circuit or for the circuit in which such person resides
or in which such person's principal place of business is located.
Courts of appeals of the United States shall have exclusive
jurisdiction of any action to obtain judicial review (other than in
an enforcement proceeding) of such a rule if any district court of
the United States would have had jurisdiction of such action but
for this subparagraph.
(B) Courts of appeals of the United States shall have exclusive
jurisdiction of any action to obtain judicial review (other than in
an enforcement proceeding) of an order issued under subparagraph
(A) or (B) of section 2605(b)(1) of this title if any district
court of the United States would have had jurisdiction of such
action but for this subparagraph.
(2) Copies of any petition filed under paragraph (1)(A) shall be
transmitted forthwith to the Administrator and to the Attorney
General by the clerk of the court with which such petition was
filed. The provisions of section 2112 of title 28 shall apply to
the filing of the rulemaking record of proceedings on which the
Administrator based the rule being reviewed under this section and
to the transfer of proceedings between United States courts of
appeals.
(3) For purposes of this section, the term "rulemaking record"
means -
(A) the rule being reviewed under this section;
(B) in the case of a rule under section 2603(a) of this title,
the finding required by such section, in the case of a rule under
section 2604(b)(4) of this title, the finding required by such
section, in the case of a rule under section 2605(a) of this
title the finding required by section 2604(f) or 2605(a) of this
title, as the case may be, in the case of a rule under section
2605(a) of this title, the statement required by section
2605(c)(1) of this title, and in the case of a rule under section
2605(e) of this title, the findings required by paragraph (2)(B)
or (3)(B) of such section, as the case may be (!1) and in the
case of a rule under subchapter IV of this chapter, the finding
required for the issuance of such a rule;
(C) any transcript required to be made of oral presentations
made in proceedings for the promulgation of such rule;
(D) any written submission of interested parties respecting the
promulgation of such rule; and
(E) any other information which the Administrator considers to
be relevant to such rule and which the Administrator identified,
on or before the date of the promulgation of such rule, in a
notice published in the Federal Register.
(b) Additional submissions and presentations; modifications
If in an action under this section to review a rule the
petitioner or the Administrator applies to the court for leave to
make additional oral submissions or written presentations
respecting such rule and shows to the satisfaction of the court
that such submissions and presentations would be material and that
there were reasonable grounds for the submissions and failure to
make such submissions and presentations in the proceeding before
the Administrator, the court may order the Administrator to provide
additional opportunity to make such submissions and presentations.
The Administrator may modify or set aside the rule being reviewed
or make a new rule by reason of the additional submissions and
presentations and shall file such modified or new rule with the
return of such submissions and presentations. The court shall
thereafter review such new or modified rule.
(c) Standard of review
(1)(A) Upon the filing of a petition under subsection (a)(1) of
this section for judicial review of a rule, the court shall have
jurisdiction (i) to grant appropriate relief, including interim
relief, as provided in chapter 7 of title 5, and (ii) except as
otherwise provided in subparagraph (B), to review such rule in
accordance with chapter 7 of title 5.
(B) Section 706 of title 5 shall apply to review of a rule under
this section, except that -
(i) in the case of review of a rule under section 2603(a),
2604(b)(4), 2605(a), or 2605(e) of this title, the standard for
review prescribed by paragraph (2)(E) of such section 706 shall
not apply and the court shall hold unlawful and set aside such
rule if the court finds that the rule is not supported by
substantial evidence in the rulemaking record (as defined in
subsection (a)(3) of this section) taken as a whole;
(ii) in the case of review of a rule under section 2605(a) of
this title, the court shall hold unlawful and set aside such rule
if it finds that -
(I) a determination by the Administrator under section
2605(c)(3) of this title that the petitioner seeking review of
such rule is not entitled to conduct (or have conducted)
cross-examination or to present rebuttal submissions, or
(II) a rule of, or ruling by, the Administrator under section
2605(c)(3) of this title limiting such petitioner's
cross-examination or oral presentations,
has precluded disclosure of disputed material facts which was
necessary to a fair determination by the Administrator of the
rulemaking proceeding taken as a whole; and section 706(2)(D)
shall not apply with respect to a determination, rule, or ruling
referred to in subclause (I) or (II); and
(iii) the court may not review the contents and adequacy of -
(I) any statement required to be made pursuant to section
2605(c)(1) of this title, or
(II) any statement of basis and purpose required by section
553(c) of title 5 to be incorporated in the rule
except as part of a review of the rulemaking record taken as a
whole.
The term "evidence" as used in clause (i) means any matter in the
rulemaking record.
(C) A determination, rule, or ruling of the Administrator
described in subparagraph (B)(ii) may be reviewed only in an action
under this section and only in accordance with such subparagraph.
(2) The judgment of the court affirming or setting aside, in
whole or in part, any rule reviewed in accordance with this section
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.
(d) Fees and costs
The decision of the court in an action commenced under subsection
(a) of this section, or of the Supreme Court of the United States
on review of such a decision, may include an award of costs of suit
and reasonable fees for attorneys and expert witnesses if the court
determines that such an award is appropriate.
(e) Other remedies
The remedies as provided in this section shall be in addition to
and not in lieu of any other remedies provided by law.
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