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The measurements under this note refer to the use of an AEC instrument. If the respirable fraction of coal dust is determined with a MRE the figure corresponding to that of 2.4 Mg/ M' in the table for coal dust is 4.5 Mg/M3

(36 FR 23217, Dec. 7, 1971)

8 50–204.65 Inspection of compressed gas

cylinders. Each contractor shall determine that compressed gas cylinders under his extent that this can be determined by visual inspection. Visual and other inspections shall be conducted as prescribed in the Hazardous Materials Regulations of the Department of Transportation (49 CFR Parts 171-179 and 14 CFR Part 103). Where those regulations are not applicable, visual and other inspections shall be conducted in accordance with Compressed Gas Association Pamphlets C-6-198 and C-8-1962.

8 50–204.69 Nitrous oxide.

The piped systems for the in-plant transfer and distribution of nitrous oxide shall be designed, installed, maintained, and operated in accordance with Compressed Gas Association Pamphlet G-8.1-1964. 850–204.70 Compressed gases.

The in-plant handling, storage, and utilization of all compressed gases in cylinders, portable tanks, rail tankcars, or motor vehicle cargo tanks shall be in accordance with Compressed Gas Association Pamphlet P1-1965. [35 FR 1015, Jan. 24, 1970)

$ 50–204.71 Safety relief devices for com

pressed gas containers. Compressed gas cylinders, portable tanks, and cargo tanks shall have pressure relief devices installed and maintained in accordance with Compressed Gas Association Pamphlets S-1.1-1963 and 1965 addenda and S-1.2-1963.

$ 50–204.66 Acetylene.

(a) The in-plant transfer, handling, storage, and utilization of acetylene in cylinders shall be in accordance with Compressed Gas Association Pamphlet G-1-1966.

(b) The piped systems for the inplant transfer and distribution of acetylene shall be designed, installed, maintained, and operated in accordance with Compressed Gas Association Pamphlet G-1.3-1959.

(c) Plants for the generation of acetylene and the charging (filling) of acetylene cylinders shall be designed, constructed, and tested in accordance with the standards prescribed in Compressed Gas Association Pamphlet G1.4-1966.

$ 50–204.72 Safe practices for welding and

cutting on containers which have held

combustibles. Welding or cutting, or both, on containers which have held flammable or combustible solids, liquids, or gases, or have contained substances which may produce flammable vapors or gases will not be attempted until the containers have been thoroughly cleaned, purged, or inerted in strict accordance with the rules and procedures embodied in American Welding Society Pamphlet A-6.0-65, edition of 1965. (35 FR 1015, Jan. 24, 1970)

Subpart E-Transportation Safety

$ 50-204.67 Oxygen.

The in-plant transfer, handling, stor. age, and utilization of oxygen as a liquid or a compressed gas shall be in accordance with Compressed Gas Association Pamphlet G-4-1962.

850–204.75 Transportation safety.

Any requirements of the U.S. Department of Transportation under 49 CFR Parts 171-179 and Parts 390-397 and 14 CFR Part 103 shall be applied

to transportation under contracts engaged in the performance of the which are subject to the Walsh-Healey contract, and the enforcement of the Public Contracts Act. See also $ 50- safety and health standards interpret204.2(a)(3) of this part. When such re ing and applying that stipulation pubquirements are not otherwise applica lished in Part 50-204 of this chapter. ble, Chapters 10, 11, 12, and 14 of the Uniform Vehicle Code of the National $50-205.2 Definitions. Committee on Uniform Traffic Laws (a) “Act” means the Walsh-Healey and Ordnances, 1962 edition, shall be Public Contracts Act. applied whenever pertinent.

(b) "Secretary” means the Secretary (35 FR 1016, Jan. 24, 1970)

of Labor.

(c) "State agency" means any auPART 50-205-ENFORCEMENT OF

thority of a State government which is

responsible for the enforcement of SAFETY AND HEALTH STANDARDS

State laws or regulations prescribing BY STATE OFFICERS AND EMPLOY

safety and health standards for emEES

ployees.

(d) “Director” means the Director, Sec.

Bureau of Labor Standards or his duly 50-205.1 Purpose and scope. 50-205.2 Definitions.

authorized representative. 50-205.3 Agreement with a State agency. (41 U.S.C. 40; 5 U.S.C. 556) 50-205.4 Plan of cooperation.

[27 FR 1270, Feb. 10, 1962, as amended at 32 50-205.5 Inspections by State agency.

FR 7704, May 26, 1967) 50-205.6 Complaints. 50-205.7 Manual of instructions.

$ 50-205.3 Agreement with a State agency. 50-205.8 Reports of inspections. 50-205.9 Inspections by the Department of The Secretary may enter into an Labor.

agreement with the head of a State 50-205.10 Modification or termination of agency providing for the use of State agreement.

or local officers and employees in the AUTHORITY: Sec. 4, 49 Stat. 2038, 41 U.S.C. conduct of inspections under the 38. Interpret or apply sec. 1, 49 Stat. 2036, safety and health provisions of the 41 U.S.C. 35, unless otherwise noted.

Act as interpreted or applied in Part SOURCE: 27 FR 1270, Feb. 10, 1962, unless 50-204 of this chapter whenever he otherwise noted.

finds that the utilization of such State

or local officers is necessary to assist $ 50-205.1 Purpose and scope.

in the administration of those proviThe Walsh-Healey Public Contracts sions. In making such a finding, conAct authorizes and directs the Secre sideration may be given to the State tary of Labor to utilize, with the con laws or regulations administered by sent of a State, such State and local the State agency providing safety and officers and employees as he may find health standards, the central and field necessary to assist in the administra organization of the State agency, and tion of the Act. It is the purpose of the qualifications of its investigative this part to prescribe the rules govern personnel. ing the use of such State and local of ficers in inspections (or investigations) $ 50-205.4 Plan of cooperation. relating to the enforcement of the Each agreement under this part stipulation required by the Act provid- shall incorporate a plan of cooperation ing that no part of a contract subject between the Department of Labor and thereto will be performed nor will any the State agency. The plan shall inmaterials, supplies, articles, or equip clude the operative details of the coopment to be manufactured or furnished eration contemplated in the making of under such a contract be manufac- safety and health inspections. The tured or fabricated in any plants, fac- plan shall include a statement of the tories, buildings, or surroundings or location of the State offices designatunder working conditions which are ed to make inspections and those of unsanitary or hazardous or dangerous the Department of Labor designated to the health and safety of employees to cooperate with such State offices.

$ 50-205.5 Inspections by State agency.

Inspections shall be conducted by the State agency with whom an agree. ment has been made under this part in order to determine the extent of compliance by Government contractors subject to the Act (as determined by the Department of Labor) with the safety and health provisions interpreted or applied in Part 50-204 of this chapter. Inspectors of the State agency shall be considered authorized representatives of the Secretary of Labor in making inspections including the examining of the records of the Government contractor maintained under $ $ 50-201.501 and 50-201.502 of this chapter. Inspections shall be made upon request of the Department of Labor or concurrently with inspections made to ascertain the compliance by employers with State safety and health requirements. 8 50-205.6 Complaints.

When a complaint of alleged safety and health violations by an employer apparently subject to the Act is filed with a State agency, that agency shall transmit a copy of the complaint to the cooperating office of the Depart. ment of Labor within 5 days from the receipt of the complaint. All complaints shall be considered confidential and shall not be disclosed to any employer without the consent of the complainant.

(c) The inspection discloses minor violations of the safety and health requirements of Part 50-204 of this chapter by an employer apparently subject to the Act which are not corrected promptly when such apparent violations are brought to the attention of the employer or as to which fully reliable assurances of future compliance are not or cannot be obtained. 8 50-205.9 Inspections by the Department

of Labor. The Director may conduct such inspections as he may find appropriate to assure compliance with the safety and health provisions of the Act or whenever he may find that a safety and health inspection should be carried out along with investigation under other provisions of the Act or the Fair Labor Standards Act of 1938. Whenever an inspection by the Director discloses apparent violations of State safety and health requirements, the Director shall report such disclosures to the State agency. (41 U.S.C. 40; 5 U.S.C. 556) [32 FR 7704, May 26, 1967)

$ 50-205.10 Modification or termination of

agreement. Any agreement entered into this part may be modified at any time with the consent of both parties, and may be terminated by either party after notifying the other party 60 days prior thereto.

8 50-205.7 Manual of instructions.

The Director shall provide the State agency with a manual of instructions which shall be used in the making of inspections. (41 U.S.C. 40; 5 U.S.C. 556) (32 FR 7704, May 26, 1967)

PART 50–206—THE WALSH-HEALEY

PUBLIC CONTRACTS ACT INTERPRETATIONS

Subpart A-General

Sec. 50-206.1 The Walsh-Healey Public Con

tracts Act. 50-206.2 Administration of the Act. 50-206.3 Purpose and scope of this part.

$ 50-205.8 Reports of inspections.

The State agency shall furnish the Department of Labor with a report of its inspection when the following circumstances exist:

(a) The inspection was requested by the Department of Labor;

(b) The inspection discloses serious violations of the safety and health requirements of Part 50-204 of this chapter by an employer apparently subject to the Act;

Subpart B—[Reserved]

Subpart C—Contractors QUALIFICATIONS OF CONTRACTORS 50-206.50 To whom covered contracts may

be awarded-eligibility. 50-206.51 Manufacturer. 50-206.52 Assembler.

Sec.

ing of materials, supplies, articles, and 50-206.53 Regular dealer.

equipment in any amount exceeding 50-206.54 Regular dealer in particular $10,000" which is made and entered products.

into by an agency of the United States 50-206.55 Agents. 50-206.56 Administrative exemptions.

or other entity as designated in section

1 of the Act, hereinafter referred to as AUTHORITY: Sec. 4, 49 Stat. 2038, 41 U.S.C.

contracting agency." Contractors per38, Secretary of Labor's Order No. 16-75, 40

forming work subject to the Act thus FR 55913, and Employment Standards

enter into competition to obtain GovOrder 2-76, 41 FR 9016.

ernment business on terms of which SOURCE: 43 FR 22975, May 30, 1978, unless they are fairly forwarned by inclusion otherwise noted.

in the contract.” (“Endicott Johnson

Corp. v. Perkins, supra," 317 U.S. at Subpart A-General

507.) The Act also provides for en

forcement of the required representa$ 50-206.1 The Walsh-Healey Public Con tions and stipulations by various tracts Act.

methods. Certain exemptions from the The Walsh-Healey Public Contracts application of the Act are provided in Act, as amended (41 U.S.C. 35-45), section 9 of the statute. Other exemphereinafter referred to as the Act, was tions, variations, and tolerances may enacted “to provide conditions for the be provided under section 6 of the purchase of supplies and the making statute by the Secretary of Labor or of contracts by the United States.” It the President. is not an act of general applicability to industry. The Supreme Court has de- $ 50-206.2 Administration of the Act. scribed it as an instruction by the Gov. (a) The Secretary of Labor is authorernment to its agents who were select- ized and directed to administer the ed and granted final authority to fix provisions of the Act, to make investithe terms and conditions under which gations, findings, and decisions therethe Government will permit goods to under, and to make, amend, and rebe sold to it. Its purpose, according to scind rules and regulations with rethe Supreme Court "was to impose ob spect to its application (see sections 4 ligations upon those favored with Gov and 5). The Supreme Court has recogernment business and to obviate the nized that the Secretary may issue rulpossibility that any part of our tre ings defining the coverage of the Act. mendous national expenditures would (“Endicott Johnson Corp. v. Perkins, go to forces tending to depress wages supra”.) According to the Court (ibid.), and purchasing power and offending in the statute as originally enacted fair social standards of employment.” “Congress submitted the administra(Perkins v. Lukens Steel Co.,” 310 tion of the Act to the judgment of the U.S. 113, 128 (1940); “Endicott John Secretary of Labor, not to the judgson Corp. V. Perkins,” 317 U.S. 501 ment of the courts." An amendment to (1943).) To this end, the Act requires the Act in 1952 added specific provi. those who enter into contracts to per sions for judicial review (see section form Government work subject to its 10). The Secretary has promulgated terms to adhere to specifically pre regulations to carry out provisions of scribed representations and stipula- the Act, which are set forth elsewhere tions as set forth in 41 CFR 50-201.1 in this chapter (Part 50-201 (general pertaining to qualifications of contrac- regulations); Part 50-202 (minimum tors, minimum wages, overtime pay, wage determinations); Part 50-203 safe and sanitary working conditions (rules of practice); and Part 50-204 of workers employed on the contract, (Safety and Health Standards)). The the use of child labor or convict labor Secretary of Labor has delegated to on the contract work, and the enforce the Administrator of the Wage and ment of such provisions. Except as Hour Division through the Assistant otherwise specifically provided, these Secretary for Employment Standards representations and stipulations are the authority to promulgate regularequired to be included in every con- tions and to issue official rulings and tract "for the manufacture or furnish- interpretations. So long as such regu

lations, rulings, and interpretations include every possible situation, no inare not modified, amended, rescinded, ference should be drawn from the fact or determined by judicial authority to that a subject or illustration is omitbe incorrect, they may be relied upon ted. If doubt arises, inquiries should be as provided in section 10 of the Portal- directed to the Administrator of the to-Portal Act of 1947 (61 Stat. 84, 29 Wage and Hour Division, United U.S.C. 251, et seq., discussed in 29 CFR States Department of Labor, WashingPart 790). Furthermore, these inter- ton, D.C. 20210, or to any Regional pretations are intended to indicate the Office of the Wage and Hour Division. construction of the law which the Department of Labor believes to be cor

Subpart B-[Reserved] rect and which will be followed in the administration of the Act unless and

Subpart C—Contractors until directed otherwise by Act of Congress or by authoritative rulings of the

QUALIFICATIONS OF CONTRACTORS courts. (“Skidmore v. Swift & Co.”, 323 U.S. 134 (1944), "Roland Co. v. $ 50-206.50 To whom covered contracts Walling”, 326 U.S. 657 (1946); “Endi

may be awarded-eligibility. cott Johnson Corp. v. Perkins, supra”,

(a)(1) Section 1(a) of the Act reand “Perkins v. Lukens Steel Co.,

quires that every contract subject to supra”.)

the Act shall contain a representation (b) The courts have held that the

and stipulation by the contractor that "interpretations of the Walsh-Healey

it is either “the manufacturer of or a Act and the regulations adopted there

regular dealer in" the commodities to under, as made by the Secretary of

be manufactured or used in the perLabor acting through his Administra

formance of the contract. As noted in tor, are both correct and reasonable.”

the following sections, these terms are (“Jno. McCall Coal Company v. United

defined by regulation. The legislative States," 374 F. 2d 689, 692 (C.A. 4,

history makes it clear that this statu

histori mo 1967); see also “United States v. Davi

tory requirement is intended, among son Fuel and Dock Company,” 371 F.

other things, to eliminate the award of 2d 705, 711-714 (C.A. 4, 1967).) These

contracts to “bid brokers," and to propolicies are designed to protect not vide labor standards protection for emonly employees but also the competi

ployees who actually engage in the tive interest of all firms qualified to

manufacture or furnishing of the compete for covered contracts.

goods to the Government, by requir

ing, among other things, that the Gov$ 50-206.3 Purpose and scope of this part.

ernment award contracts only to bona It is the purpose of this part 50-206

fide manufacturers or regular dealers. to make available, in codified form for A breach of this required stipulation is the guidance of agencies of the United a violation of the Act; however, a conStates or other entities designed in tractor who has been awarded a consection 1 of the Act and persons or tract in spite of its failure to qualify as firms contracting therewith, official a manufacturer or regular dealer is rulings and interpretations with re- not relieved of its obligation to comply spect to the Walsh-Healey Public Con with the other requirements of the tracts Act. This part constitutes the Act and regulations, which are also official statement of the position of contract stipulations. the Department of Labor in matters (2) In implementing Section 1(a) of relating to this Act. The interpretative the Act, the Secretary of Labor has rules herein stated supersede, to the defined in 41 CFR 50-201.101 the extent of any inconsistency, Rulings terms “manufacturer" and "regular and Interpretations No. 3 and all other dealer" by stating the affirmative rerulings, interpretations, and enforce- quirements that must be met by poment policies not set forth in this tential contractors before they may rechapter. This Part 50-206 illustrates ceive Government contracts subject to the principles stated herein by show- the Act. Every bid from any bidder ing their application to situations who is not a manufacturer or regular which frequently arise. Since it cannot dealer, as defined therein and in ac

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