Title 33 — Navigation and Navigable Waters — § 1368. Federal procurement
Summary
These pages of Title 33, Navigation and Navigable Waters, print section 1368, Federal procurement: no Federal agency may enter into a contract for goods, materials, and services with a person convicted of an offense under section 1319(c) if the contract is to be performed at the facility where the violation occurred, and the bar continues until the Administrator certifies that the condition has been corrected. The President may exempt any contract, loan, or grant in the paramount interest of the United States and must report annually to Congress on compliance. No contractor certification or contract clause may be required for the acquisition of commercial products or commercial services. The pages also print the end of section 1367 on investigations of employment reductions and section 1369 on subpenas and judicial review, where an application for review must be made within 120 days.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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§ 1368 TITLE 33—NAVIGATION AND NAVIGABLE WATERS Page 588
(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,
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