1.14 Review by Wage Appeals Board. 1.15 Public information.

AUTHORITY: The provisions of this Part 1 issued under R.S. 161, 64 Stat. 1267; sec. 2, 48 Stat. 948; sec. 10, 61 Stat. 89; 5 U.S.C. 22, 133z-15; 40 U.S.C. 276c; 29 U.S.C. 258. Interpret or apply sec. 1, 46 Stat. 1494, 49 Stat. 1011; sec. 212 added to c. 847, 48 Stat. 1246 by sec. 14, 53 Stat. 807; sec. 602, added to c. 94, 64 Stat. 77 at 73 Stat. 681; sec. 2, 60 Stat. 1041; sec. 15, 60 Stat. 178; sec. 307(f); 63 Stat. 430; sec. 205, 64 Stat. 973; sec. 310, 65 Stat. 307; sec. 201, 64 Stat. 1248; sec. 3, 72 Stat. 532; sec. 108, 72 Stat. 895; sec. 6, 62 Stat. 1158; sec. 15, 75 Stat. 714; sec. 21, 75 Stat. 613; sec. 15, 75 Stat. 688; sec. 721, 77 Stat. 167; secs. 101, 122, 135, 205, 77 Stat. 282, 284, and 288. 40 U.S.C. 276a; 12 U.S.C. 1701q, 1715c, 1749a; 42 U.S.C. 291h, 1416, 1459, 1592; 29 U.S.C. 1114, 20 U.S.C. 636; 23 U.S.C. 113; 50 U.S.C. App. 2281; 33 U.S.C. 466e. SOURCE: The provisions of this Part 1 appear at 29 F.R. 95, Jan. 4, 1964, unless otherwise noted.

§ 1.1 Purpose and scope.

The regulations contained in this part set forth the procedure for the determination of wage rates pursuant to each of the following acts: Davis-Bacon Act, National Housing Act, Hospital Survey and Construction Act, Federal Airport Act, Housing Act of 1949, School Survey and Construction Act of 1950, Defense Housing and Community Facilities and Services Act of 1951, Federal-Aid Highway Act of 1956, Federal Civil Defense Act of 1950, College Housing Act of 1950, Federal Water Pollution Control Act, Area Redevelopment Act, Delaware River Basin Compact Housing Act of 1959, and Health Professions Educational Assist

ance Act of 1963, Mental Retardation Facilities Construction Act, Community Mental Health Centers Act, Higher Educational Facilities Act of 1963, Vocational Educational Act of 1963, Library Services and Construction Act, Urban Mass Transportation Act of 1964, Economic Opportunity Act of 1964, Hospital Medical Facilities Amendments of 1964, Housing Act of 1964, The Commercial Fisheries Research and Development Act of 1964, The Nurse Training Act of 1964, and such other statutes as may, from time to time, confer upon the Secretary of Labor similar wage determining authority. (5 U.S.C. 22)

[29 F.R. 13462, Sept. 30, 1964]

(1) The rate of wages paid in the area in which the work is to be performed, to the majority of those employed in that classification in construction in the area similar to the proposed undertaking;

(2) In the event that there is not a majority paid at the same rate, then the rate paid to the greater number: Provided, Such greater number constitutes 30 percent of those employed; or

(3) In the event that less than 30 percent of those so employed receive the same rate, then the average rate.

(b) The term "area" in determining wage rates under the Davis-Bacon Act and the prevailing wage provisions of the other statutes listed in § 1.1 shall mean the city, town, village, or other civil subdivision of the State in which the work is to be performed. In determining wage rates pursuant to section 115 of the Federal-Aid Highway Act of 1956, the College Housing Act of 1950, and the Federal Water Pollution Control Act, the term "area" shall mean immediate locality of the proposed project.

(c) The term "average rate" for each classification in an area shall mean the rate obtained by adding the hourly rates paid to all workers in the classification and dividing by the total number of such workers.

1 These definitions are not intended to restrict the meaning of the terms as used in the applicable statutes.

(d) The term "Solicitor" shall mean the Solicitor of Labor.

(e) The term "wages" (and its singular form) has the meaning prescribed in section 1(b) of the Davis-Bacon Act. It includes "other bona fide fringe benefits" than those expressly enumerated in the Act. This permits, among other things, the inclusion of "bona fide fringe benefits" in prevailing wage determinations under the Act for a particular area when the payment of such fringe benefits constitutes a prevailing practice. In finding whether or not it is the prevailing area practice to pay such fringe benefits, the Solicitor shall be guided by the tests of prevalence similar to those prescribed in paragraph (a) of this section.

[29 F.R. 95, Jan. 4, 1964, as amended at 29 F.R. 13462, Sept. 30, 1964]

§ 1.3 Obtaining and compiling wage rate information.

For the purpose of making wage rate determinations, the Solicitor shall conduct a continuing program for the obtaining and compiling of wage rate information.

(a) The Solicitor shall encourage the voluntary submission of wage rate data by contractors, contractors' associations, labor organizations, public officials, and other interested parties, reflecting wage rates paid to laborers and mechanics on various types of construction in the area. Rates must be determined, among others, for such varying types of projects as buildings, bridges, dams, highways, tunnels, sewers, power lines, railways, airports (buildings and runways), apartment houses, wharves, levees, canals, dredging, land-clearing and excavating. Accordingly, the information submitted should reflect not only that the specified wage rate or rates are paid to a particular craft in an area, but also the type or types of construction on which such rate or rates are paid.

(b) The following types of information will be considered in making wage rate determinations:

(1) Statements showing wage rates paid on projects. (Such statements should indicate the names and addresses of contractors, including subcontractors, the locations, approximate costs, dates of construction and types of projects, the number of workers employed in each classification on each project, and the respective wage rates paid such workers.);

(2) Signed collective bargaining agreements. (The Solicitor may request the parties to an agreement to submit statements certifying to its scope and application.);

(3) Wage rates determined for public construction by state and local officials pursuant to prevailing wage legislation;

(4) Information furnished by Federal and State agencies. See 5.3 of this subtitle. (In making wage rate determinations pursuant to section 115 of the Federal-Aid Highway Act of 1956, the Solicitor shall consult with the highway department of the State in which a project in the Interstate System is to be performed. Before making a determination of wage rates for such a project he shall give due regard to the information thus obtained.);

(5) Any other information pertinent to the determination of prevailing wage rates.

(c) The Solicitor shall supplement such information obtained on a voluntary basis by such means, including the holding of hearings, and from whatever sources he deems necessary.

§ 1.4 Outline of agency construction programs.

To the extent practicable, at the beginning of each fiscal year each agency using wage determinations under any of the various statutes listed in § 1.1 shall furnish the Solicitor with a general outline of its proposed construction programs for the coming year indicating the estimated number of projects for which wage determinations will be required, the anticipated types of construction, and the locations of construction. During the fiscal year, each agency shall notify the Solicitor of any significant changes in its proposed construction programs, as outlined at the beginning of the fiscal year.

§ 1.5 Determination of wage rates.

In the event that the data compiled under § 1.3 is sufficient to determine the prevailing wage rates the Solicitor shall make a determination as to the wage rates prevailing in the area.

§ 1.6 Scope of consideration (exclusive of wage rate determinations made pursuant to the Federal-Aid Highway Act of 1956, which shall be made in accordance with § 1.3(b)(4) of this part).

(a) In making a wage rate determination projects completed more than one

year prior to the date of request for the determination may, but need not be considered.

(b) If there has been no similar construction within the area in the past year, wage rates paid on the nearest similar construction may be considered.

§ 1.7 Field survey.

Whenever the Solicitor deems that the data at hand are insufficient to make a determination with respect to all the crafts necessary to perform the proposed construction work, he may have a field survey conducted in the area of the proposed project for the purpose of obtaining sufficient information upon which to make a determination of wage rates.

§ 1.8 Hearings.

Whenever he deems it necessary because of insufficiency of information or impracticality of a field survey, or both, the Solicitor may direct a hearing to be held. He shall designate a hearing examiner who shall, after notice to all interested persons, proceed to the project area and make such investigations and conduct such hearings as may be necessary to make a determination of wage rates for the project.

§ 1.9 Pre-hearing conferences.

When it appears that a pre-hearing conference will expedite proceedings, the examiner prior to the hearing may request interested persons to attend a conference to consider such matters as may expedite the hearing.

The Solicitor shall rule upon any exceptions filed under § 1.12, and shall make a determination as to the prevailing wage rates for the project.

§ 1.14 Review by Wage Appeals Board.

Any interested person may appeal to the Wage Appeals Board for a review of a determination of wage rates by the Solicitor under this part, or any findings and conclusions made on the record of any hearings held under § 1.3(c). Any such appeal may, in the discretion of the Wage Appeals Board, be received, accepted, and decided in accordance with such procedures as the Board may establish.

§ 1.15 Public information.

Papers and documents containing information furnishing the basis for any determination of wage rates shall be available for public inspection under the procedure prescribed in § 2.6(a) of this subtitle. Copies of such papers and documents may be obtained without regard to the procedure prescribed in § 2.9 of this subtitle. The application of these procedures shall ensure that disclosure of the relevant information will be made in a manner which will not be detrimental to the public interest or to any person voluntarily submitting information who requested that such information be held confidential.

Sec.

2.7 Opinions and orders; availability for inspection.

2.8 Claims under the Federal Tort Claims Act for loss of or damage to property or for personal injury or death. Withdrawal of originals and copies from Departmental records.

2.9

2.10 Officers authorized to sign and issue certificates of authentication.

AUTHORITY: The provisions of this Part 2 issued under R.S. 161; 5 U.S.C. 22, except as otherwise noted.

FORMER EMPLOYEES DESIRING TO PRACTICE

BEFORE THE DEPARTMENT

§ 2.1 Employees attached to regional offices.

No person who has been an employee of the Department and attached to a Regional office of any bureau, board, division or other agency thereof, shall be permitted to practice, appear, or act as attorney, agent or representative before the Department or any branch or agent thereof in connection with any case or administrative proceeding which was pending before such Regional office during the time of his employment with the Department, unless he shall first obtain the written consent thereto of the Secretary of Labor or his duly authorized representative.

[5 F.R. 5237, Dec. 24, 1940]

§ 2.2

Employees attached to Washington office.

No person who has been an employee of the Department and attached to the Washington office of any bureau, board, division or other agency thereof, shall be permitted to practice, appear, or act as attorney, agent or representative before the Department or any branch or agent thereof, in connection with any case or administrative proceeding pending before such bureau, board, division or other agency during the time of his employment with the Department, unless he shall first obtain the written consent thereto of the Secretary of Labor or his duly authorized representative.

[5 F.R. 5237, Dec. 24, 1940] § 2.3

Consent of the Secretary.

The consent of the Secretary or his duly authorized representative may be obtained as follows:

The applicant shall file an application in the form of an affidavit. Such application, directed to the Secretary should:

(a) State the former connection of the applicant with the Department;

(b) Identify the matter in which the applicant desires to appear, and

(c) Contain a statement to the effect that the applicant gave no personal consideration to such matter while he was an employee of the Department.

The application will be denied if the statements contained therein are disproved by an examination of the files, records and circumstances pertaining to the matter, or if, in the opinion of the Secretary or his duly authorized representative, the public interest so requires. If the Secretary or his duly authorized representative is satisfied that the applicant gave no personal consideration to the matter in question while employed by the Department, and if he is satisfied that it is lawful and consistent with the public interest to do so, he may grant his consent, in writing, to the request of the applicant, subject to such conditions, if any, as he deems necessary and desirable. Any function of the Secretary under this section may be performed by the Under Secretary of Labor. [19 F. R. 3418, June 10, 1954] PUBLIC RECORDS

§ 2.4 Copies and inspections.

(a) The papers and documents described in subparagraphs (1) and (2) of this paragraph, may be examined or inspected by any person during regular business hours on any regular workday (Monday through Friday of each week, official Federal holidays excepted). Facsimile copies of such records and documents will also be furnished upon request. Except for copies duplicated for distribution for no fee, a fee of 25 cents will be charged for each facsimile page reproduction in a maximum size of 101⁄2" x 151⁄2". Such postal fees in excess of domestic first class postal rates as are necessary for transmittal of copies will be added to the per-page fee specified unless stamps or stamped envelopes are furnished with the request. Bureaus of the Department having custody of records covered by this section, the types of records that are open to public examination and inspection, and the addresses at which records may be examined and inspected or copies purchased, are as follows:

The

(1) Bureau of Labor Statistics. Collective bargaining agreements and other available agreements and actions thereunder settling or adjusting labor disputes, maintained by the Department