Executive Order 11738
Providing for Administration of the Clean Air Act
and the Federal Water Pollution Control Act With Respect to Federal Contracts,
Grants, or Loans
September 10, 1973
By virtue of the authority vested in me by the provisions 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
SECTION 1. Policy. It is the policy of the Federal Government 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 effective enforcement of the Clean Air Act (hereinafter referred to
as 'the Air Act') and the Federal Water Pollution Control Act (hereinafter
referred to as 'the Water Act').
SECTION 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 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. 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.
SECTION 3. Contracts, Grants, or Loans.
(a) Except as provided 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 Administrator 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 assistance 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 section 2.
SECTION 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 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 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 assistance.
SECTION 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.
SECTION 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 transmit such reports to the Administrator.
SECTION 7. Enforcement.
The Administrator may recommend to the Department
of Justice or other appropriate 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.
SECTION 8. Executions--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
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
(A) promptly notify the Administrator of such
exemption and the justification therefore;
(B) review the necessity for each such exemption
(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 determination by the head of the Federal agency concerned.
(2) The Administrator may, by rule or regulation,
exempt 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,
(B) have a minimal potential impact upon the
(C) involve 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.
SECTION 9. Related Actions.
The imposition of any sanction 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.
SECTION 10. Applicability.
This Order shall not apply to contracts, grants,
or loans involving the use of facilities located outside the United
SECTION 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.
SECTION 12. Order Superseded.
Executive Order No. 11602 of June 29, 1971, is
THE WHITE HOUSE,
September 10, 1973.
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