33 U.S.C. § 1368 — Federal procurement

Page 588 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1368 (e) Investigations of employment reductions The Administrator shall conduct continuing evaluations of potential loss or shifts of employ- ment which may result from the issuance of any effluent limitation or order under this chapter, including, where appropriate, investigating threatened plant closures or reductions in em- ployment allegedly resulting from such limita- tion or order. Any employee who is discharged or laid-off, threatened with discharge or lay-off, or otherwise discriminated against by any per- son because of the alleged results of any effluent limitation or order issued under this chapter, or any representative of such employee, may re- quest the Administrator to conduct a full inves- tigation of the matter. The Administrator shall thereupon investigate the matter and, at the re- quest of any party, shall hold public hearings on not less than five days notice, and shall at such hearings require the parties, including the em- ployer involved, to present information relating to the actual or potential effect of such limita- tion or order on employment and on any alleged discharge, lay-off, or other discrimination and the detailed reasons or justification therefor. Any such hearing shall be of record and shall be subject to section 554 of title 5. Upon receiving the report of such investigation, the Adminis- trator shall make findings of fact as to the ef- fect of such effluent limitation or order on em- ployment and on the alleged discharge, lay-off, or discrimination and shall make such rec- ommendations as he deems appropriate. Such report, findings, and recommendations shall be available to the public. Nothing in this sub- section shall be construed to require or author- ize the Administrator to modify or withdraw any effluent limitation or order issued under this chapter. (June 30, 1948, ch. 758, title V, § 507, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 890.) § 1368. Federal procurement (a) Contracts with violators prohibited No Federal agency may enter into any con- tract with any person, who has been convicted of any offense under section 1319(c) of this title, for the procurement of goods, materials, and serv- ices if such contract is to be performed at any facility at which the violation which gave rise to such conviction occurred, and if such facility is owned, leased, or supervised by such person. The prohibition in the preceding sentence shall continue until the Administrator certifies that the condition giving rise to such conviction has been corrected. (b) Notification of agencies The Administrator shall establish procedures to provide all Federal agencies with the notifi- cation necessary for the purposes of subsection (a) of this section. (c) Omitted (d) Exemptions The President may exempt any contract, loan, or grant from all or part of the provisions of this section where he determines such exemption is necessary in the paramount interest of the United States and he shall notify the Congress of such exemption. (e) Annual report to Congress The President shall annually report to the Congress on measures taken in compliance with the purpose and intent of this section, including, but not limited to, the progress and problems associated with such compliance. (f) Contractor certification or contract clause in acquisition of commercial products or com- mercial services (1) No certification by a contractor, and no contract clause, may be required in the case of a contract for the acquisition of commercial products or commercial services in order to im- plement a prohibition or requirement of this section or a prohibition or requirement issued in the implementation of this section. (2) In paragraph (1), the terms ‘‘commercial product’’ and ‘‘commercial service’’ have the meanings given those terms in sections 103 and 103a, respectively, of title 41. (June 30, 1948, ch. 758, title V, § 508, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 891; amended Pub. L. 103–355, title VIII, § 8301(a), Oct. 13, 1994, 108 Stat. 3396; Pub. L. 115–232, div. A, title VIII, § 836(g)(5), Aug. 13, 2018, 132 Stat. 1873.) Editorial Notes CODIFICATION Subsec. (c) of this section authorized the President to cause to be issued, not more than 180 days after October 18, 1972, an order (1) requiring each Federal agency au- thorized to enter into contracts or to extend Federal assistance by way of grant, loan, or contract, to effec- tuate the purpose and policy of this chapter, and (2) setting forth procedures, sanctions and penalties as the President determines necessary to carry out such re- quirement. AMENDMENTS 2018—Subsec. (f)(1). Pub. L. 115–232, § 836(g)(5)(A), sub- stituted ‘‘commercial products or commercial services’’ for ‘‘commercial items’’. Subsec. (f)(2). Pub. L. 115–232, § 836(g)(5)(B), sub- stituted ‘‘the terms ‘commercial product’ and ‘commer- cial service’ have the meanings given those terms in sections 103 and 103a, respectively, of title 41.’’ for ‘‘the term ‘commercial item’ has the meaning given such term in section 103 of title 41.’’ 1994—Subsec. (f). Pub. L. 103–355 added subsec. (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amend- ment; Savings Provision note under section 453b of Title 6, Domestic Security. EFFECTIVE DATE OF 1994 AMENDMENT For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of Title 10, Armed Forces. Executive Documents ADMINISTRATION OF CHAPTER WITH RESPECT TO FEDERAL CONTRACTS, GRANTS, OR LOANS For provisions concerning the administration of this chapter with respect to Federal contracts, grants, or 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,