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Title 42 — The Public Health and Welfare — § 7606. Federal procurement

Summary

These pages of Title 42 carry 42 U.S.C. § 7606, Federal procurement, which is section 306 of the Clean Air Act. Section 7606 bars any Federal agency from contracting with a person convicted of an offense under section 7413(c) for goods, materials or services to be performed at the facility where the violation occurred, until the Administrator certifies that the condition giving rise to the conviction has been corrected; the Administrator may extend the bar to other facilities the convicted person owns or operates. The section also has the Administrator set notification procedures and lets the President exempt a contract, loan or grant, with notice to Congress. The notes reprint Executive Order No. 11738 of Sept. 10, 1973.

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§ 7605                       TITLE 42—THE PUBLIC HEALTH AND WELFARE                                         Page 7390

 Pub. L. 95–95, § 303(b), added par. (3).                    tection Agency, dated June 13, 1977, respecting
                                                             representation of the agency by the department
         Statutory Notes and Related Subsidiaries            in civil litigation.
           EFFECTIVE DATE OF 1990 AMENDMENT                  (July 14, 1955, ch. 360, title III, § 305, as added
  Pub. L. 101–549, title VII, § 707(g), Nov. 15, 1990, 104   Pub. L. 91–604, § 12(a), Dec. 31, 1970, 84 Stat. 1707;
Stat. 2683, provided that: ‘‘The amendment made by           amended Pub. L. 95–95, title III, § 304(a), Aug. 7,
this subsection [amending this section] shall take ef-       1977, 91 Stat. 772.)
fect with respect to actions brought after the date 2
years after the enactment of the Clean Air Act Amend-                             Editorial Notes
ments of 1990 [Nov. 15, 1990].’’
                                                                                   CODIFICATION
           EFFECTIVE DATE OF 1977 AMENDMENT
                                                               Section was formerly classified to section 1857h–3 of
  Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex-     this title.
cept as otherwise expressly provided, see section 406(d)
of Pub. L. 95–95, set out as a note under section 7401 of                        PRIOR PROVISIONS
this title.                                                    A prior section 305 of act July 14, 1955, as added Nov.
                                                             21, 1967, Pub. L. 90–148, § 2, 81 Stat. 505, was renumbered
      TERMINATION OF REPORTING REQUIREMENTS
                                                             section 312 by Pub. L. 91–604 and is classified to section
  For termination, effective May 15, 2000, of reporting      7612 of this title.
provisions in subsec. (g)(1) of this section, see section      Another prior section 305 of act July 14, 1955, ch. 360,
3003 of Pub. L. 104–66, as amended, set out as a note        title III, formerly § 12, as added Dec. 17, 1963, Pub. L.
under section 1113 of Title 31, Money and Finance, and       88–206, § 1, 77 Stat. 401, was renumbered section 305 by
the 6th item on page 165 of House Document No. 103–7.        Pub. L. 89–272, renumbered section 308 by Pub. L. 90–148,
                                                             and renumbered section 315 by Pub. L. 91–604, and is
           PENDING ACTIONS AND PROCEEDINGS                   classified to section 7615 of this title.
  Suits, actions, and other proceedings lawfully com-
                                                                                   AMENDMENTS
menced by or against the Administrator or any other
officer or employee of the United States in his official       1977—Pub. L. 95–95 designated existing provisions as
capacity or in relation to the discharge of his official     subsec. (a) and added subsec. (b).
duties under act July 14, 1955, the Clean Air Act, as in
effect immediately prior to the enactment of Pub. L.                Statutory Notes and Related Subsidiaries
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.                EFFECTIVE DATE OF 1977 AMENDMENT
95–95, set out as an Effective Date of 1977 Amendment          Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex-
note under section 7401 of this title.                       cept as otherwise expressly provided, see section 406(d)
                                                             of Pub. L. 95–95, set out as a note under section 7401 of
MODIFICATION OR RESCISSION OF RULES, REGULATIONS,
                                                             this title.
 ORDERS,    DETERMINATIONS,  CONTRACTS,  CERTIFI-
 CATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER                       PENDING ACTIONS AND PROCEEDINGS
 ACTIONS
                                                               Suits, actions, and other proceedings lawfully com-
  All rules, regulations, orders, determinations, con-       menced by or against the Administrator or any other
tracts, certifications, authorizations, delegations, or      officer or employee of the United States in his official
other actions duly issued made, or taken by or pursu-        capacity or in relation to the discharge of his official
ant to act July 14, 1955, the Clean Air Act, as in effect    duties under act July 14, 1955, the Clean Air Act, as in
immediately prior to the date of enactment of Pub. L.        effect immediately prior to the enactment of Pub. L.
95–95 [Aug. 7, 1977] to continue in full force and effect    95–95 [Aug. 7, 1977], not to abate by reason of the taking
until modified or rescinded in accordance with act July      effect of Pub. L. 95–95, see section 406(a) of Pub. L.
14, 1955, as amended by Pub. L. 95–95 [this chapter], see    95–95, set out as an Effective Date of 1977 Amendment
section 406(b) of Pub. L. 95–95, set out as an Effective     note under section 7401 of this title.
Date of 1977 Amendment note under section 7401 of this
title.                                                       MODIFICATION OR RESCISSION OF RULES, REGULATIONS,
                                                              ORDERS,    DETERMINATIONS,  CONTRACTS,  CERTIFI-
§ 7605. Representation in litigation                          CATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER
                                                              ACTIONS
(a) Attorney General; attorneys appointed by Ad-
                                                               All rules, regulations, orders, determinations, con-
    ministrator
                                                             tracts, certifications, authorizations, delegations, or
  The Administrator shall request the Attorney               other actions duly issued, made, or taken by or pursu-
General to appear and represent him in any civil             ant to act July 14, 1955, the Clean Air Act, as in effect
action instituted under this chapter to which                immediately prior to the date of enactment of Pub. L.
the Administrator is a party. Unless the Attor-              95–95 [Aug. 7, 1977] to continue in full force and effect
                                                             until modified or rescinded in accordance with act July
ney General notifies the Administrator that he
                                                             14, 1955, as amended by Pub. L. 95–95 [this chapter], see
will appear in such action, within a reasonable              section 406(b) of Pub. L. 95–95, set out as an Effective
time, attorneys appointed by the Administrator               Date of 1977 Amendment note under section 7401 of this
shall appear and represent him.                              title.
(b) Memorandum of understanding regarding
                                                             § 7606. Federal procurement
    legal representation
  In the event the Attorney General agrees to                (a) Contracts with violators prohibited
appear and represent the Administrator in any                  No Federal agency may enter into any con-
such action, such representation shall be con-               tract with any person who is convicted of any
ducted in accordance with, and shall include                 offense under section 7413(c) of this title for the
participation by, attorneys appointed by the Ad-             procurement of goods, materials, and services to
ministrator to the extent authorized by, the                 perform such contract at any facility at which
memorandum of understanding between the De-                  the violation which gave rise to such conviction
partment of Justice and the Environmental Pro-               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                                      AMENDMENTS
preceding sentence shall continue until the Ad-                  1990—Subsec. (a). Pub. L. 101–549 substituted ‘‘section
ministrator certifies that the condition giving                7413(c)’’ for ‘‘section 7413(c)(1)’’ and inserted sentences
rise to such a conviction has been corrected. For              at end relating to convictions arising under section
convictions arising under section 7413(c)(2) of                7413(c)(2) of this title and extension of prohibition to
this title, the condition giving rise to the con-              other facilities owned by convicted persons.
viction also shall be considered to include any
substantive violation of this chapter associated                      Statutory Notes and Related Subsidiaries
with the violation of 7413(c)(2) of this title. The            FEDERAL ACQUISITION REGULATION: CONTRACTOR CER-
Administrator may extend this prohibition to                    TIFICATION OR CONTRACT CLAUSE FOR ACQUISITION OF
other facilities owned or operated by the con-                  COMMERCIAL ITEMS
victed person.                                                   Pub. L. 103–355, title VIII, § 8301(g), Oct. 13, 1994, 108
(b) Notification procedures                                    Stat. 3397, as amended by Pub. L. 115–232, div. A, title
  The Administrator shall establish procedures                 VIII, § 836(g)(8), Aug. 13, 2018, 132 Stat. 1874, provided
                                                               that: ‘‘The Federal Acquisition Regulation may not
to provide all Federal agencies with the notifi-               contain a requirement for a certification by a con-
cation necessary for the purposes of subsection                tractor under a contract for the acquisition of commer-
(a).                                                           cial products or commercial services, or a requirement
(c) Federal agency contracts                                   that such a contract include a contract clause, in order
                                                               to implement a prohibition or requirement of section
  In order to implement the purposes and policy                306 of the Clean Air Act (42 U.S.C. 7606) or a prohibition
of this chapter to protect and enhance the qual-               or requirement issued in the implementation of that
ity of the Nation’s air, the President shall, not              section, since there is nothing in such section 306 that
more than 180 days after December 31, 1970,                    requires such a certification or contract clause.’’
cause to be issued an order (1) requiring each
Federal agency authorized to enter into con-                                     Executive Documents
tracts and each Federal agency which is empow-
                                                                              EXECUTIVE ORDER NO. 11602
ered to extend Federal assistance by way of
grant, loan, or contract to effectuate the pur-                  Ex. Ord. No. 11602, June 29, 1971, 36 F.R. 12475, which
pose and policy of this chapter in such con-                   related to the administration of the Clean Air Act with
                                                               respect to Federal contracts, grants, or loans, was su-
tracting or assistance activities, and (2) setting
                                                               perseded by Ex. Ord. No. 11738, Sept. 10, 1973, 38 F.R.
forth procedures, sanctions, penalties, and such               25161, set out below.
other provisions, as the President determines
necessary to carry out such requirement.                       EX. ORD. NO. 11738. ADMINISTRATION OF THE CLEAN AIR
                                                                ACT AND THE FEDERAL WATER POLLUTION CONTROL
(d) Exemptions; notification to Congress
                                                                ACT WITH RESPECT TO FEDERAL CONTRACTS, GRANTS,
  The President may exempt any contract, loan,                  OR LOANS
or grant from all or part of the provisions of this               Ex. Ord. No. 11738, Sept. 10, 1973, 38 F.R. 25161, pro-
section where he determines such exemption is                  vided:
necessary in the paramount interest of the                        By virtue of the authority vested in me by the provi-
United States and he shall notify the Congress                 sions of the Clean Air Act, as amended (42 U.S.C. 1857
of such exemption.                                             et seq.) [42 U.S.C. 7401 et seq.], particularly section 306
                                                               of that Act as added by the Clean Air Amendments of
(July 14, 1955, ch. 360, title III, § 306, as added            1970 (Public Law 91–604) [this section], and the Federal
Pub. L. 91–604, § 12(a), Dec. 31, 1970, 84 Stat. 1707;         Water Pollution Control Act (33 U.S.C. 1251 et seq.),
amended Pub. L. 101–549, title VII, § 705, Nov. 15,            particularly section 508 of that Act as added by the
1990, 104 Stat. 2682.)                                         Federal Water Pollution Control Act Amendments of
                                                               1972 (Public Law 92–500) [33 U.S.C. 1368], it is hereby or-
                     Editorial Notes                           dered as follows:
                                                                  SECTION 1. Policy. It is the policy of the Federal Gov-
                      CODIFICATION                             ernment to improve and enhance environmental qual-
  Subsec. (e) of this section, which required the Presi-       ity. In furtherance of that policy, the program pre-
dent to annually report to Congress on measures taken          scribed in this Order is instituted to assure that each
toward implementing the purpose and intent of this             Federal agency empowered to enter into contracts for
section, terminated, effective May 15, 2000, pursuant to       the procurement of goods, materials, or services and
section 3003 of Pub. L. 104–66, as amended, set out as a       each Federal agency empowered to extend Federal as-
note under section 1113 of Title 31, Money and Finance.        sistance by way of grant, loan, or contract shall under-
See, also, the 14th item on page 20 of House Document          take such procurement and assistance activities in a
No. 103–7.                                                     manner that will result in effective enforcement of the
  Section was formerly classified to section 1857h–4 of        Clean Air Act [this chapter] (hereinafter referred to as
this title.                                                    ‘‘the Air Act’’) and the Federal Water Pollution Con-
                                                               trol Act (hereinafter referred to as ‘‘the Water Act’’) [33
                    PRIOR PROVISIONS                           U.S.C. 1251 et seq.].
   A prior section 306 of act July 14, 1955, ch. 360, title       SEC. 2. Designation of Facilities. (a) The Administrator
III, as added Nov. 21, 1967, Pub. L. 90–148, § 2, 81 Stat.     of the Environmental Protection Agency (hereinafter
506, was renumbered section 313 by Pub. L. 91–604 and is       referred to as ‘‘the Administrator’’) shall be responsible
classified to section 7613 of this title.                      for the attainment of the purposes and objectives of
   Another prior section 306 of act July 14, 1955, ch. 360,    this Order.
title III, formerly § 13, as added Dec. 17, 1963, Pub. L.         (b) In carrying out his responsibilities under this
88–206, § 1, 77 Stat. 401, renumbered § 306, Oct. 20, 1965,    Order, the Administrator shall, in conformity with all
Pub. L. 89–272, title I, § 101(4), 79 Stat. 992, renumbered    applicable requirements of law, designate facilities
§ 309, Nov. 21, 1967, Pub. L. 90–148, § 2, 81 Stat. 506, re-   which have given rise to a conviction for an offense
numbered § 316, Dec. 31, 1970, Pub. L. 91–604, § 12(a), 84     under section 113(c)(1) of the Air Act [42 U.S.C.
Stat. 1705, related to appropriations and was classified       7413(c)(1)] or section 309(c) of the Water Act [33 U.S.C.
to section 1857l of this title, prior to repeal by section     1319(c)]. The Administrator shall, from time to time,
306 of Pub. L. 95–95. See section 7626 of this title.          publish and circulate to all Federal agencies lists of
§ 7607                      TITLE 42—THE PUBLIC HEALTH AND WELFARE                                             Page 7392

those facilities, together with the names and addresses      less than specified dollar amounts, or (B) have a mini-
of the persons who have been convicted of such of-           mal potential impact upon the environment, or (C) in-
fenses. Whenever the Administrator determines that           volve persons who are not prime contractors or direct
the condition which gave rise to a conviction has been       recipients of Federal assistance by way of contracts,
corrected, he shall promptly remove the facility and         grants, or loans.
the name and address of the person concerned from the          (b) Federal agencies shall reconsider any exemption
list.                                                        granted under subsection (a) whenever requested to do
  SEC. 3. Contracts, Grants, or Loans. (a) Except as pro-    so by the Administrator.
vided in section 8 of this Order, no Federal agency shall      (c) The Administrator shall annually notify the
enter into any contract for the procurement of goods,        President and the Congress of all exemptions granted,
materials, or services which is to be performed in whole     or in effect, under this Order during the preceding year.
or in part in a facility then designated by the Adminis-       SEC. 9. Related Actions. The imposition of any sanc-
trator pursuant to section 2.                                tion or penalty under or pursuant to this Order shall
  (b) Except as provided in section 8 of this Order, no      not relieve any person of any legal duty to comply with
Federal agency authorized to extend Federal assistance       any provisions of the Air Act or the Water Act.
by way of grant, loan, or contract shall extend such as-       SEC. 10. Applicability. This Order shall not apply to
sistance in any case in which it is to be used to support    contracts, grants, or loans involving the use of facili-
any activity or program involving the use of a facility      ties located outside the United States.
then designated by the Administrator pursuant to sec-          SEC. 11. Uniformity. Rules, regulations, standards, and
tion 2.                                                      guidelines issued pursuant to this order and section 508
  SEC. 4. Procurement, Grant, and Loan Regulations. The      of the Water Act [33 U.S.C. 1368] shall, to the maximum
Federal Procurement Regulations, the Armed Services          extent feasible, be uniform with regulations issued pur-
Procurement Regulations, and to the extent necessary,        suant to this order, Executive Order No. 11602 of June
any supplemental or comparable regulations issued by         29, 1971 [formerly set out above], and section 306 of the
any agency of the Executive Branch shall, following          Air Act [this section].
consultation with the Administrator, be amended to re-         SEC. 12. Order Superseded. Executive Order No. 11602 of
quire, as a condition of entering into, renewing, or ex-     June 29, 1971, is hereby superseded.
tending any contract for the procurement of goods, ma-
                                                                                                     RICHARD NIXON.
terials, or services or extending any assistance by way
of grant, loan, or contract, inclusion of a provision re-    § 7607. Administrative proceedings and judicial
quiring compliance with the Air Act, the Water Act,
                                                                 review
and standards issued pursuant thereto in the facilities
in which the contract is to be performed, or which are       (a) Administrative subpenas; confidentiality; wit-
involved in the activity or program to receive assist-           nesses
ance.
  SEC. 5. Rules and Regulations. The Administrator shall       In connection with any determination under
issue such rules, regulations, standards, and guidelines     section 7410(f) of this title, or for purposes of ob-
as he may deem necessary or appropriate to carry out         taining information under section 7521(b)(4) 1 or
the purposes of this Order.                                  7545(c)(3) of this title, any investigation, moni-
  SEC. 6. Cooperation and Assistance. The head of each
                                                             toring, reporting requirement, entry, compli-
Federal agency shall take such steps as may be nec-
essary to insure that all officers and employees of this     ance inspection, or administrative enforcement
agency whose duties entail compliance or comparable          proceeding under the 2 chapter (including but
functions with respect to contracts, grants, and loans       not limited to section 7413, section 7414, section
are familiar with the provisions of this Order. In addi-     7420, section 7429, section 7477, section 7524, sec-
tion to any other appropriate action, such officers and      tion 7525, section 7542, section 7603, or section
employees shall report promptly any condition in a fa-       7606 of this title),,3 the Administrator may issue
cility which may involve noncompliance with the Air          subpenas for the attendance and testimony of
Act or the Water Act or any rules, regulations, stand-       witnesses and the production of relevant papers,
ards, or guidelines issued pursuant to this Order to the
head of the agency, who shall transmit such reports to
                                                             books, and documents, and he may administer
the Administrator.                                           oaths. Except for emission data, upon a showing
  SEC. 7. Enforcement. The Administrator may rec-            satisfactory to the Administrator by such owner
ommend to the Department of Justice or other appro-          or operator that such papers, books, documents,
priate agency that legal proceedings be brought or           or information or particular part thereof, if
other appropriate action be taken whenever he becomes        made public, would divulge trade secrets or se-
aware of a breach of any provision required, under the       cret processes of such owner or operator, the Ad-
amendments issued pursuant to section 4 of this Order,
to be included in a contract or other agreement.
                                                             ministrator shall consider such record, report,
  SEC. 8. Exemptions—Reports to Congress. (a) Upon a de-     or information or particular portion thereof
termination that the paramount interest of the United        confidential in accordance with the purposes of
States so requires—                                          section 1905 of title 18, except that such paper,
  (1) The head of a Federal agency may exempt any            book, document, or information may be dis-
contract, grant, or loan, and, following consultation        closed to other officers, employees, or author-
with the Administrator, any class of contracts, grants       ized representatives of the United States con-
or loans from the provisions of this Order. In any such
case, the head of the Federal agency granting such ex-
                                                             cerned with carrying out this chapter, to per-
emption shall (A) promptly notify the Administrator of       sons carrying out the National Academy of
such exemption and the justification therefor; (B) re-       Sciences’ study and investigation provided for in
view the necessity for each such exemption annually;         section 7521(c) of this title, or when relevant in
and (C) report to the Administrator annually all such        any proceeding under this chapter. Witnesses
exemptions in effect. Exemptions granted pursuant to         summoned shall be paid the same fees and mile-
this section shall be for a period not to exceed one year.   age that are paid witnesses in the courts of the
Additional exemptions may be granted for periods not         United States. In case of contumacy or refusal
to exceed one year upon the making of a new deter-
mination by the head of the Federal agency concerned.
                                                             to obey a subpena served upon any person under
  (2) The Administrator may, by rule or regulation, ex-
empt any or all Federal agencies from any or all of the       1 See References in Text note below.

provisions of this Order with respect to any class or         2 So in original. Probably should be ‘‘this’’.

classes of contracts, grants, or loans, which (A) involve     3 So in original.


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