42 U.S.C. § 7606 — Federal procurement

Page 7390 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7605 Pub. L. 95–95, § 303(b), added par. (3). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101–549, title VII, § 707(g), Nov. 15, 1990, 104 Stat. 2683, provided that: ‘‘The amendment made by this subsection [amending this section] shall take ef- fect with respect to actions brought after the date 2 years after the enactment of the Clean Air Act Amend- ments of 1990 [Nov. 15, 1990].’’ EFFECTIVE DATE OF 1977 AMENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex- cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title. TERMINATION OF REPORTING REQUIREMENTS For termination, effective May 15, 2000, of reporting provisions in subsec. (g)(1) of this section, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and the 6th item on page 165 of House Document No. 103–7. PENDING ACTIONS AND PROCEEDINGS Suits, actions, and other proceedings lawfully com- menced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. MODIFICATION OR RESCISSION OF RULES, REGULATIONS, ORDERS, DETERMINATIONS, CONTRACTS, CERTIFI- CATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER ACTIONS All rules, regulations, orders, determinations, con- tracts, certifications, authorizations, delegations, or other actions duly issued made, or taken by or pursu- ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7605. Representation in litigation (a) Attorney General; attorneys appointed by Ad- ministrator The Administrator shall request the Attorney General to appear and represent him in any civil action instituted under this chapter to which the Administrator is a party. Unless the Attor- ney General notifies the Administrator that he will appear in such action, within a reasonable time, attorneys appointed by the Administrator shall appear and represent him. (b) Memorandum of understanding regarding legal representation In the event the Attorney General agrees to appear and represent the Administrator in any such action, such representation shall be con- ducted in accordance with, and shall include participation by, attorneys appointed by the Ad- ministrator to the extent authorized by, the memorandum of understanding between the De- partment of Justice and the Environmental Pro- tection Agency, dated June 13, 1977, respecting representation of the agency by the department in civil litigation. (July 14, 1955, ch. 360, title III, § 305, as added Pub. L. 91–604, § 12(a), Dec. 31, 1970, 84 Stat. 1707; amended Pub. L. 95–95, title III, § 304(a), Aug. 7, 1977, 91 Stat. 772.) Editorial Notes CODIFICATION Section was formerly classified to section 1857h–3 of this title. PRIOR PROVISIONS A prior section 305 of act July 14, 1955, as added Nov. 21, 1967, Pub. L. 90–148, § 2, 81 Stat. 505, was renumbered section 312 by Pub. L. 91–604 and is classified to section 7612 of this title. Another prior section 305 of act July 14, 1955, ch. 360, title III, formerly § 12, as added Dec. 17, 1963, Pub. L. 88–206, § 1, 77 Stat. 401, was renumbered section 305 by Pub. L. 89–272, renumbered section 308 by Pub. L. 90–148, and renumbered section 315 by Pub. L. 91–604, and is classified to section 7615 of this title. AMENDMENTS 1977—Pub. L. 95–95 designated existing provisions as subsec. (a) and added subsec. (b). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1977 AMENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex- cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title. PENDING ACTIONS AND PROCEEDINGS Suits, actions, and other proceedings lawfully com- menced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. MODIFICATION OR RESCISSION OF RULES, REGULATIONS, ORDERS, DETERMINATIONS, CONTRACTS, CERTIFI- CATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER ACTIONS All rules, regulations, orders, determinations, con- tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu- ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7606. Federal procurement (a) Contracts with violators prohibited No Federal agency may enter into any con- tract with any person who is convicted of any offense under section 7413(c) of this title for the procurement of goods, materials, and services to perform such contract at any facility at which the violation which gave rise to such conviction occurred if such facility is owned, leased, or su- Page 7391 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7606 pervised by such person. The prohibition in the preceding sentence shall continue until the Ad- ministrator certifies that the condition giving rise to such a conviction has been corrected. For convictions arising under section 7413(c)(2) of this title, the condition giving rise to the con- viction also shall be considered to include any substantive violation of this chapter associated with the violation of 7413(c)(2) of this title. The Administrator may extend this prohibition to other facilities owned or operated by the con- victed person. (b) Notification procedures The Administrator shall establish procedures to provide all Federal agencies with the notifi- cation necessary for the purposes of subsection (a). (c) Federal agency contracts In order to implement the purposes and policy of this chapter to protect and enhance the qual- ity of the Nation’s air, the President shall, not more than 180 days after December 31, 1970, cause to be issued an order (1) requiring each Federal agency authorized to enter into con- tracts and each Federal agency which is empow- ered to extend Federal assistance by way of grant, loan, or contract to effectuate the pur- pose and policy of this chapter in such con- tracting or assistance activities, and (2) setting forth procedures, sanctions, penalties, and such other provisions, as the President determines necessary to carry out such requirement. (d) Exemptions; notification to Congress 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. (July 14, 1955, ch. 360, title III, § 306, as added Pub. L. 91–604, § 12(a), Dec. 31, 1970, 84 Stat. 1707; amended Pub. L. 101–549, title VII, § 705, Nov. 15, 1990, 104 Stat. 2682.) Editorial Notes CODIFICATION Subsec. (e) of this section, which required the Presi- dent to annually report to Congress on measures taken toward implementing the purpose and intent of this section, terminated, effective May 15, 2000, pursuant to section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance. See, also, the 14th item on page 20 of House Document No. 103–7. Section was formerly classified to section 1857h–4 of this title. PRIOR PROVISIONS A prior section 306 of act July 14, 1955, ch. 360, title III, as added Nov. 21, 1967, Pub. L. 90–148, § 2, 81 Stat. 506, was renumbered section 313 by Pub. L. 91–604 and is classified to section 7613 of this title. Another prior section 306 of act July 14, 1955, ch. 360, title III, formerly § 13, as added Dec. 17, 1963, Pub. L. 88–206, § 1, 77 Stat. 401, renumbered § 306, Oct. 20, 1965, Pub. L. 89–272, title I, § 101(4), 79 Stat. 992, renumbered § 309, Nov. 21, 1967, Pub. L. 90–148, § 2, 81 Stat. 506, re- numbered § 316, Dec. 31, 1970, Pub. L. 91–604, § 12(a), 84 Stat. 1705, related to appropriations and was classified to section 1857l of this title, prior to repeal by section 306 of Pub. L. 95–95. See section 7626 of this title. AMENDMENTS 1990—Subsec. (a). Pub. L. 101–549 substituted ‘‘section 7413(c)’’ for ‘‘section 7413(c)(1)’’ and inserted sentences at end relating to convictions arising under section 7413(c)(2) of this title and extension of prohibition to other facilities owned by convicted persons. Statutory Notes and Related Subsidiaries FEDERAL ACQUISITION REGULATION: CONTRACTOR CER- TIFICATION OR CONTRACT CLAUSE FOR ACQUISITION OF COMMERCIAL ITEMS Pub. L. 103–355, title VIII, § 8301(g), Oct. 13, 1994, 108 Stat. 3397, as amended by Pub. L. 115–232, div. A, title VIII, § 836(g)(8), Aug. 13, 2018, 132 Stat. 1874, provided that: ‘‘The Federal Acquisition Regulation may not contain a requirement for a certification by a con- tractor under a contract for the acquisition of commer- cial products or commercial services, or a requirement that such a contract include a contract clause, in order to implement a prohibition or requirement of section 306 of the Clean Air Act (42 U.S.C. 7606) or a prohibition or requirement issued in the implementation of that section, since there is nothing in such section 306 that requires such a certification or contract clause.’’ Executive Documents EXECUTIVE ORDER NO. 11602 Ex. Ord. No. 11602, June 29, 1971, 36 F.R. 12475, which related to the administration of the Clean Air Act with respect to Federal contracts, grants, or loans, was su- perseded by Ex. Ord. No. 11738, Sept. 10, 1973, 38 F.R. 25161, set out below. EX. ORD. NO. 11738. ADMINISTRATION OF THE CLEAN AIR ACT AND THE FEDERAL WATER POLLUTION CONTROL ACT WITH RESPECT TO FEDERAL CONTRACTS, GRANTS, OR LOANS Ex. Ord. No. 11738, Sept. 10, 1973, 38 F.R. 25161, pro- vided: By virtue of the authority vested in me by the provi- sions of the Clean Air Act, as amended (42 U.S.C. 1857 et seq.) [42 U.S.C. 7401 et seq.], particularly section 306 of that Act as added by the Clean Air Amendments of 1970 (Public Law 91–604) [this section], and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), particularly section 508 of that Act as added by the Federal Water Pollution Control Act Amendments of 1972 (Public Law 92–500) [33 U.S.C. 1368], it is hereby or- dered as follows: SECTION 1. Policy. It is the policy of the Federal Gov- ernment to improve and enhance environmental qual- ity. In furtherance of that policy, the program pre- scribed in this Order is instituted to assure that each Federal agency empowered to enter into contracts for the procurement of goods, materials, or services and each Federal agency empowered to extend Federal as- sistance by way of grant, loan, or contract shall under- take such procurement and assistance activities in a manner that will result in effective enforcement of the Clean Air Act [this chapter] (hereinafter referred to as ‘‘the Air Act’’) and the Federal Water Pollution Con- trol Act (hereinafter referred to as ‘‘the Water Act’’) [33 U.S.C. 1251 et seq.]. SEC. 2. Designation of Facilities. (a) The Administrator of the Environmental Protection Agency (hereinafter referred to as ‘‘the Administrator’’) shall be responsible for the attainment of the purposes and objectives of this Order. (b) In carrying out his responsibilities under this Order, the Administrator shall, in conformity with all applicable requirements of law, designate facilities which have given rise to a conviction for an offense under section 113(c)(1) of the Air Act [42 U.S.C. 7413(c)(1)] or section 309(c) of the Water Act [33 U.S.C. 1319(c)]. The Administrator shall, from time to time, publish and circulate to all Federal agencies lists of Page 7392 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7607 1 See References in Text note below. 2 So in original. Probably should be ‘‘this’’. 3 So in original. those facilities, together with the names and addresses of the persons who have been convicted of such of- fenses. Whenever the Administrator determines that the condition which gave rise to a conviction has been corrected, he shall promptly remove the facility and the name and address of the person concerned from the list. SEC. 3. Contracts, Grants, or Loans. (a) Except as pro- vided in section 8 of this Order, no Federal agency shall enter into any contract for the procurement of goods, materials, or services which is to be performed in whole or in part in a facility then designated by the Adminis- trator pursuant to section 2. (b) Except as provided in section 8 of this Order, no Federal agency authorized to extend Federal assistance by way of grant, loan, or contract shall extend such as- sistance in any case in which it is to be used to support any activity or program involving the use of a facility then designated by the Administrator pursuant to sec- tion 2. SEC. 4. Procurement, Grant, and Loan Regulations. The Federal Procurement Regulations, the Armed Services Procurement Regulations, and to the extent necessary, any supplemental or comparable regulations issued by any agency of the Executive Branch shall, following consultation with the Administrator, be amended to re- quire, as a condition of entering into, renewing, or ex- tending any contract for the procurement of goods, ma- terials, or services or extending any assistance by way of grant, loan, or contract, inclusion of a provision re- quiring compliance with the Air Act, the Water Act, and standards issued pursuant thereto in the facilities in which the contract is to be performed, or which are involved in the activity or program to receive assist- ance. SEC. 5. Rules and Regulations. The Administrator shall issue such rules, regulations, standards, and guidelines as he may deem necessary or appropriate to carry out the purposes of this Order. SEC. 6. Cooperation and Assistance. The head of each Federal agency shall take such steps as may be nec- essary to insure that all officers and employees of this agency whose duties entail compliance or comparable functions with respect to contracts, grants, and loans are familiar with the provisions of this Order. In addi- tion to any other appropriate action, such officers and employees shall report promptly any condition in a fa- cility which may involve noncompliance with the Air Act or the Water Act or any rules, regulations, stand- ards, or guidelines issued pursuant to this Order to the head of the agency, who shall transmit such reports to the Administrator. SEC. 7. Enforcement. The Administrator may rec- ommend to the Department of Justice or other appro- priate agency that legal proceedings be brought or other appropriate action be taken whenever he becomes aware of a breach of any provision required, under the amendments issued pursuant to section 4 of this Order, to be included in a contract or other agreement. SEC. 8. Exemptions—Reports to Congress. (a) Upon a de- termination that the paramount interest of the United States so requires— (1) The head of a Federal agency may exempt any contract, grant, or loan, and, following consultation with the Administrator, any class of contracts, grants or loans from the provisions of this Order. In any such case, the head of the Federal agency granting such ex- emption shall (A) promptly notify the Administrator of such exemption and the justification therefor; (B) re- view the necessity for each such exemption annually; and (C) report to the Administrator annually all such exemptions in effect. Exemptions granted pursuant to this section shall be for a period not to exceed one year. Additional exemptions may be granted for periods not to exceed one year upon the making of a new deter- mination by the head of the Federal agency concerned. (2) The Administrator may, by rule or regulation, ex- empt any or all Federal agencies from any or all of the provisions of this Order with respect to any class or classes of contracts, grants, or loans, which (A) involve less than specified dollar amounts, or (B) have a mini- mal potential impact upon the environment, or (C) in- volve persons who are not prime contractors or direct recipients of Federal assistance by way of contracts, grants, or loans. (b) Federal agencies shall reconsider any exemption granted under subsection (a) whenever requested to do so by the Administrator. (c) The Administrator shall annually notify the President and the Congress of all exemptions granted, or in effect, under this Order during the preceding year. SEC. 9. Related Actions. The imposition of any sanc- tion or penalty under or pursuant to this Order shall not relieve any person of any legal duty to comply with any provisions of the Air Act or the Water Act. SEC. 10. Applicability. This Order shall not apply to contracts, grants, or loans involving the use of facili- ties located outside the United States. SEC. 11. Uniformity. Rules, regulations, standards, and guidelines issued pursuant to this order and section 508 of the Water Act [33 U.S.C. 1368] shall, to the maximum extent feasible, be uniform with regulations issued pur- suant to this order, Executive Order No. 11602 of June 29, 1971 [formerly set out above], and section 306 of the Air Act [this section]. SEC. 12. Order Superseded. Executive Order No. 11602 of June 29, 1971, is hereby superseded. RICHARD NIXON. § 7607. Administrative proceedings and judicial review (a) Administrative subpenas; confidentiality; wit- nesses In connection with any determination under section 7410(f) of this title, or for purposes of ob- taining information under section 7521(b)(4) 1 or 7545(c)(3) of this title, any investigation, moni- toring, reporting requirement, entry, compli- ance inspection, or administrative enforcement proceeding under the 2 chapter (including but not limited to section 7413, section 7414, section 7420, section 7429, section 7477, section 7524, sec- tion 7525, section 7542, section 7603, or section 7606 of this title),,3 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 emission data, upon a showing satisfactory to the Administrator by such owner or operator that such papers, books, documents, or information or particular part thereof, if made public, would divulge trade secrets or se- cret processes of such owner or operator, the Ad- ministrator 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 dis- closed to other officers, employees, or author- ized representatives of the United States con- cerned with carrying out this chapter, to per- sons carrying out the National Academy of Sciences’ study and investigation provided for in section 7521(c) of this title, or when relevant in any proceeding under this chapter. Witnesses summoned shall be paid the same fees and mile- age 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