[36 FR 23217, Dec. 7, 1971] § 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. § 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. § 50-204.67 Oxygen. The in-plant transfer, handling, storage, and utilization of oxygen as a liquid or a compressed gas shall be in accordance with Compressed Gas Association Pamphlet G-4-1962. § 50-204.68 Hydrogen. The in-plant transfer, handling, storage, and utilization of hydrogen shall be in accordance with Compressed Gas Association Pamphlets G-5.1-1961 and G-5.2-1966. § 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. § 50-204.70 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 compressed 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. § 50-204.72 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 § 50-204.75 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 § 50-205.1 Purpose and scope. The Walsh-Healey Public Contracts Act authorizes and directs the Secretary of Labor to utilize, with the consent of a State, such State and local officers and employees as he may find necessary to assist in the administration of the Act. It is the purpose of this part to prescribe the rules governing the use of such State and local officers in inspections (or investigations) relating to the enforcement of the stipulation required by the Act providing that no part of a contract subject thereto will be performed nor will any materials, supplies, articles, or equipment to be manufactured or furnished under such a contract be manufactured or fabricated in any plants, factories, buildings, or surroundings or under working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged in the performance of the contract, and the enforcement of the safety and health standards interpreting and applying that stipulation published in Part 50-204 of this chapter. § 50-205.2 Definitions. (a) "Act" means the Walsh-Healey Public Contracts Act. (b) "Secretary" means the Secretary of Labor. (c) "State agency" means any authority of a State government which is responsible for the enforcement of State laws or regulations prescribing safety and health standards for employees. (d) "Director" means the Director, Bureau of Labor Standards or his duly authorized representative. (41 U.S.C. 40; 5 U.S.C. 556) [27 FR 1270, Feb. 10, 1962, as amended at 32 FR 7704, May 26, 1967] § 50-205.3 Agreement with a State agency. The Secretary may enter into an agreement with the head of a State agency providing for the use of State or local officers and employees in the conduct of inspections under the safety and health provisions of the Act as interpreted or applied in Part 50-204 of this chapter whenever he finds that the utilization of such State or local officers is necessary to assist in the administration of those provisions. In making such a finding, consideration may be given to the State laws or regulations administered by the State agency providing safety and health standards, the central and field organization of the State agency, and the qualifications of its investigative personnel. § 50-205.4 Plan of cooperation. Each agreement under this part shall incorporate a plan of cooperation between the Department of Labor and the State agency. The plan shall include the operative details of the cooperation contemplated in the making of safety and health inspections. The plan shall include a statement of the location of the State offices designated to make inspections and those of the Department of Labor designated to cooperate with such State offices. § 50-205.5 Inspections by State agency. Inspections shall be conducted by the State agency with whom an agreement 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. § 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 Department 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. § 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] § 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; (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. § 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] Sec. 50-206.53 Regular dealer. 50-206.54 Regular dealer in particular products. 50-206.55 Agents. 50-206.56 Administrative exemptions. AUTHORITY: Sec. 4, 49 Stat. 2038, 41 U.S.C. 38, Secretary of Labor's Order No. 16-75, 40 FR 55913, and Employment Standards Order 2-76, 41 FR 9016. SOURCE: 43 FR 22975, May 30, 1978, unless otherwise noted. Subpart A-General § 50-206.1 The Walsh-Healey Public Contracts Act. The Walsh-Healey Public Contracts Act, as amended (41 U.S.C. 35-45), hereinafter referred to as the Act, was enacted "to provide conditions for the purchase of supplies and the making of contracts by the United States." It is not an act of general applicability to industry. The Supreme Court has described it as an instruction by the Government to its agents who were selected and granted final authority to fix the terms and conditions under which the Government will permit goods to be sold to it. Its purpose, according to the Supreme Court "was to impose obligations upon those favored with Government business and to obviate the possibility that any part of our tremendous national expenditures would go to forces tending to depress wages and purchasing power and offending fair social standards of employment." ("Perkins v. Lukens Steel Co.," 310 U.S. 113, 128 (1940); "Endicott Johnson Corp. v. Perkins," 317 U.S. 501 (1943).) To this end, the Act requires those who enter into contracts to perform Government work subject to its terms to adhere to specifically prescribed representations and stipulations as set forth in 41 CFR 50-201.1 pertaining to qualifications of contractors, minimum wages, overtime pay, safe and sanitary working conditions of workers employed on the contract, the use of child labor or convict labor on the contract work, and the enforcement of such provisions. Except as otherwise specifically provided, these representations and stipulations are required to be included in every contract "for the manufacture or furnish ing of materials, supplies, articles, and equipment in any amount exceeding $10,000" which is made and entered into by an agency of the United States or other entity as designated in section 1 of the Act, hereinafter referred to as "contracting agency." Contractors performing work subject to the Act thus "enter into competition to obtain Government business on terms of which they are fairly forwarned by inclusion in the contract." ("Endicott Johnson Corp. v. Perkins, supra," 317 U.S. at 507.) The Act also provides for enforcement of the required representations and stipulations by various methods. Certain exemptions from the application of the Act are provided in section 9 of the statute. Other exemptions, variations, and tolerances may be provided under section 6 of the statute by the Secretary of Labor or the President. § 50-206.2 Administration of the Act. (a) The Secretary of Labor is authorized and directed to administer the provisions of the Act, to make investigations, findings, and decisions thereunder, and to make, amend, and rescind rules and regulations with respect to its application (see sections 4 and 5). The Supreme Court has recognized that the Secretary may issue rulings defining the coverage of the Act. ("Endicott Johnson Corp. v. Perkins, supra".) According to the Court (ibid.), in the statute as originally enacted "Congress submitted the administration of the Act to the judgment of the Secretary of Labor, not to the judgment of the courts." An amendment to the Act in 1952 added specific provisions for judicial review (see section 10). The Secretary has promulgated regulations to carry out provisions of the Act, which are set forth elsewhere in this chapter (Part 50-201 (general regulations); Part 50-202 (minimum wage determinations); Part 50-203 (rules of practice); and Part 50-204 (Safety and Health Standards)). The Secretary of Labor has delegated to the Administrator of the Wage and Hour Division through the Assistant Secretary for Employment Standards the authority to promulgate regulations and to issue official rulings and interpretations. So long as such regu 3 lations, rulings, and interpretations are not modified, amended, rescinded, or determined by judicial authority to be incorrect, they may be relied upon as provided in section 10 of the Portalto-Portal Act of 1947 (61 Stat. 84, 29 U.S.C. 251, et seq., discussed in 29 CFR Part 790). Furthermore, these interpretations are intended to indicate the construction of the law which the Department of Labor believes to be correct and which will be followed in the administration of the Act unless and until directed otherwise by Act of Congress or by authoritative rulings of the courts. ("Skidmore v. Swift & Co.", 323 U.S. 134 (1944), “Roland Co. v. Walling", 326 U.S. 657 (1946); “Endicott Johnson Corp. v. Perkins, supra”, and "Perkins v. Lukens Steel Co., supra".) (b) The courts have held that the "interpretations of the Walsh-Healey Act and the regulations adopted thereunder, as made by the Secretary of Labor acting through his Administrator, are both correct and reasonable." ("Jno. McCall Coal Company v. United States," 374 F. 2d 689, 692 (C.A. 4, 1967); see also "United States v. Davison Fuel and Dock Company," 371 F. 2d 705, 711-714 (C.A. 4, 1967).) These policies are designed to protect not only employees but also the competitive interest of all firms qualified to compete for covered contracts. § 50-206.3 Purpose and scope of this part. It is the purpose of this Part 50-206 to make available, in codified form for the guidance of agencies of the United States or other entities designed in section 1 of the Act and persons or firms contracting therewith, official rulings and interpretations with respect to the Walsh-Healey Public Contracts Act. This part constitutes the official statement of the position of the Department of Labor in matters relating to this Act. The interpretative rules herein stated supersede, to the extent of any inconsistency, Rulings and Interpretations No. 3 and all other rulings, interpretations, and enforcement policies not set forth in this chapter. This Part 50-206 illustrates the principles stated herein by showing their application to situations which frequently arise. Since it cannot include every possible situation, no inference should be drawn from the fact that a subject or illustration is omitted. If doubt arises, inquiries should be directed to the Administrator of the Wage and Hour Division, United States Department of Labor, Washington, D.C. 20210, or to any Regional Office of the Wage and Hour Division. Subpart B-[Reserved] Subpart C-Contractors § 50-206.50 To whom covered contracts may be awarded-eligibility. (a)(1) Section 1(a) of the Act requires that every contract subject to the Act shall contain a representation and stipulation by the contractor that it is either "the manufacturer of or a regular dealer in" the commodities to be manufactured or used in the performance of the contract. As noted in the following sections, these terms are defined by regulation. The legislative history makes it clear that this statutory requirement is intended, among other things, to eliminate the award of contracts to "bid brokers," and to provide labor standards protection for employees who actually engage in the manufacture or furnishing of the goods to the Government, by requiring, among other things, that the Government award contracts only to bona fide manufacturers or regular dealers. A breach of this required stipulation is a violation of the Act; however, a contractor who has been awarded a contract in spite of its failure to qualify as a manufacturer or regular dealer is not relieved of its obligation to comply with the other requirements of the Act and regulations, which are also contract stipulations. (2) In implementing Section 1(a) of the Act, the Secretary of Labor has defined in 41 CFR 50-201.101 the terms "manufacturer" and "regular dealer" by stating the affirmative requirements that must be met by potential contractors before they may receive Government contracts subject to the Act. Every bid from any bidder who is not a manufacturer or regular dealer, as defined therein and in ac |