356 



16. Executive Order 11738 — Administration of the Clean Air Act and the 

 Federal Water Pollution Control Act With Respect to Federal Contracts, 



Grants, or Loans 



38 Fed. Reg. 25161 



Ex. Ord. No. 11738, Sept. 10. 1973. 38 F.B. 25161, 

 provided : 



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.). particularly section 306 of that Act as added by 

 the Clean Air Amendments of 1970 (Public Law 91-604), 

 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), It is hereby ordered as 

 follows : 



Section 1 Policy. It Is the policy of the Federal Gov- 

 ernment to Improve and enhance environmental quality. 

 In furtherance of that policy, the program prescribed 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 assistance by way of grant, 

 loan, or contract shall undertake such procurement and 

 assistance activities In a manner that will result In effec- 

 tive enforcement of the Clean Air Act (hereinafter 

 referred to as "the Air Act") and the Federal Water Pollu- 

 tion Control Act (hereinafter referred to as "the Water 

 Act") . 



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 sec- 

 tion 113(c)(1) of the Air Act or section 309(c) of the 

 Water Act. The Administrator shall, from time to time, 

 publish and circulate to all Federal agencies lists of those 

 facilities, together with the names and addresses of the 

 persons who have been convicted of such offenses. When- 

 ever 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 Admin- 

 istrator 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 v/hlch 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 con- 

 sultation with the Administrator, be amended to require, 

 as a condition of entering Into, renewing, or extending 

 any contract for the procurement of goods, materials, or 

 services or extending any assistance by way of grant, 

 loan, or contract. Inclusion of a provision requiring com- 

 pliance 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 assistance. 



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 necessary 

 to Insure that all officers and employees of his agency 

 whose duties entail compliance or comparable functions 

 with respect to contracts, grants, and loans are familiar 

 with the provisions of this Order. In addition to any other 

 appropriate action, such officers and employees shall 

 report promptly any condition In a facility which may 

 Involve noncompliance with the Air Act or the Water 

 Act or any rules, regulations, standards, or guidelines 

 Issued pursuant to this Order to the head of the agency, 

 who shall ' ansmit such reports to the Administrator. 



Sec. 7. Enforcement, The Administrator may recom- 

 mend to the Department of Justice or other appropriate 

 agency that legal proceedings be brought or other ap- 

 propriate action be taken whenever he becomes aware 

 of a breach of any provision required, under the amend- 

 ments 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 

 determination that the paramount Interest of the United 

 States so requires — 



( 1 ) The head of a Federal agency may exempt any con- 

 tract, 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 exemption shall (A) 

 promptly notify the Administrator of such exemption and 

 the Justification therefor: (B) review the necessity for 

 each such exemption annually: and (C) report to the Ad- 

 ministrator annually all such exemptions in effect. Ex- 

 emptions 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 determination 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 minimal potential 

 Impact upon the environment, or (C) Involve persons who 

 are not prime contratcors or direct recipients of Federal 

 assistance by way of contacts, 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 Pres- 

 ident 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 sanction 

 or penalty under or pursuant to this Order shall not re- 

 lieve any person of any legal duty to comply with any pro- 

 visions of the Air Act or the Water Act. j 

 Sec 10. Applicability. This Order shall not apply to con- 

 tracts, grants, or loans Involving the use of facilities lo- 

 cated outside the United States. 



Sec. 11. Uniformity. Rules, regulations, standards, and 

 guidelines Issued pursuant to this order and section 508 

 of the Water Act shall, to the maximum extent feasible, 

 be uniform with regulations Issued pursuant to this order, 

 Executive Order No. 11602 of June 29, 1971, and section 306 

 of the Air Act. 



j Sec. 12. Order Superseded. Executive Order No. 11602 of 

 1 June 29, 1971, Is hereby superseded. 



Richard Nixon. 



