[Title 41 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 1999 Edition]
[From the U.S. Government Printing Office]
41
Public Contracts and Property Management
[[Page i]]
CHAPTERS 1 TO 100
Revised as of July 1, 1999
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JULY 1, 1999
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1999
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 41:
Subtitle A--Federal Procurement Regulations System [Note]
Subtitle B--Other Provisions Relating to Public Contracts:
Chapter 50--Public Contracts, Department of Labor... 7
Chapter 51--Committee for Purchase from People who
are Blind or Severely Disabled...................... 43
Chapter 60--Office of Federal Contract Compliance
Programs, Equal Employment Opportunity, Department
of Labor............................................ 89
Chapter 61--Office of the Assistant Secretary for
Veterans' Employment and Training, Department of
Labor............................................... 233
Chapters 62-100 [Reserved]
Finding Aids:
Material Approved for Incorporation by Reference........ 247
Table of CFR Titles and Chapters........................ 249
Alphabetical List of Agencies Appearing in the CFR...... 267
List of CFR Sections Affected........................... 277
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 41 CFR 50-201.1
refers to title 41, part
50-201, section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
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To determine whether a Code volume has been amended since its
revision date (in this case, July 1, 1999), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
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1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
the period beginning January 1, 1986, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call (202) 523-4534.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
and parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
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For inquiries concerning CFR reference assistance, call 202-523-5227
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 1999.
[[Page ix]]
THIS TITLE
Title 41--Public Contracts and Property Management consists of
Subtitle A--Federal Procurement Regulations System [Note]; Subtitle B--
Other Provisions Relating to Public Contracts; Subtitle C--Federal
Property Management Regulations System; Subtitle D is reserved for other
provisions relating to property management, Subtitle E--Federal
Information Resources Management Regulations System and Subtitle F--
Federal Travel Regulation System.
As of July 1, 1985, the text of subtitle A is no longer published in
the Code of Federal Regulations. For an explanation of the status of
subtitle A, see 41 CFR chapters 1--100 (page 3).
Other government-wide procurement regulations relating to public
contracts appear in chapters 50 through 100, subtitle B.
The Federal property management regulations in chapter 101 of
subtitle C are government-wide property management regulations issued by
the General Services Administration. In the remaining chapters of
subtitle C are the implementing and supplementing property management
regulations issued by individual Government agencies. Those regulations
which implement chapter 101 are numerically keyed to it.
The Federal Travel Regulation System in chapters 300-304 of subtitle
F is issued by the General Services Administration.
Title 41 is composed of four volumes. The chapters in these volumes
are arranged as follows: Chapters 1--100, chapter 101, chapters 102--
200, and chapter 201 to End. These volumes represent all current
regulations codified under this title of the CFR as of July 1, 1999.
Redesignation tables appear in the finding aids section of the
volumes containing chapter 101 and chapters 102 to 200.
For this volume, Linda L. Jones was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 41--PUBLIC CONTRACTS AND PROPERTY MANAGEMENT
(This book contains Chapters 1-100)
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Part
SUBTITLE A--Federal Procurement Regulations System [Note]
SUBTITLE B--Other Provisions Relating to Public Contracts
Chapter 50--Public Contracts, Department of Labor........... 50-201
Chapter 51--Committee for Purchase From People Who are Blind
or Severely Disabled...................................... 51-1
Chapter 60--Office of Federal Contract Compliance Programs,
Equal Employment Opportunity, Department of Labor......... 60-1
Chapter 61--Office of the Assistant Secretary for Veterans'
Employment and Training, Department of Labor.............. 61-250
Chapters 62--100 [Reserved]
Cross References: Department of Defense Federal Acquisition Regulations,
48 CFR, Chapter 2.
Army Procurement Procedure, 32 CFR, Chapter V, Subchapter G.
Department of the Navy Procurement, Property, Patents, and Contracts,
32 CFR, Chapter VI, Subchapter D.
Air Force Procurement Regulations, 32 CFR, Chapter VII, Subchapter W.
[[Page 3]]
Subtitle A--Federal Procurement Regulations System
--------------------------------------------------------------------
Editorial Note: On September 19, 1983(48 FR 42103), a joint document
issued by the General Services Administration, the Department of Defense
and the National Aeronautics and Space Administration, established a new
Federal Acquisition Regulation in title 48 of the Code of Federal
Regulations (CFR). The general Federal Acquisition Regulation (FAR)
published on that date is codified at chapter 1 of title 48. Chapters 2
through 49 of title 48 were reserved and established for individual
agency implementations and supplementations of the FAR. The FAR in
chapter 1 together with the agency regulations in chapters 2 to 49
comprise the Federal Acquisition Regulations System that went into
effect on April 1, 1984.
The FAR system replaced both the Federal Procurement Regulations
System (FPRS) for civilian contracts (41 CFR subtitle A, chapters 1 to
49) and the Defense Acquisition Regulations (DAR) for defense contracts
(32 CFR chapter 1, parts 1 to 39). While the new FAR regulations in
title 48 replaced the title 32 DAR and title 41 FPR regulations as of
April 1, 1984, both the DAR and FPR provisions continue to apply to
those contracts which preceded the effective date of the FAR.
On April 11, 1991 (56 FR 14643), the Department of Defense removed
32 CFR parts 1-39, contained in volumes I through III. As of the
revision date of this volume, the FAR provisions in 41 CFR subtitle A,
chapters 1 to 49, appearing in the July 1, 1984 edition, continue to
apply to those contracts entered into prior to the adoption of the FAR.
[[Page 5]]
Subtitle B--Other Provisions Relating to Public Contracts
[[Page 7]]
CHAPTER 50--PUBLIC CONTRACTS, DEPARTMENT OF LABOR
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Part Page
50-201 General regulations......................... 9
50-202 Minimum wage determinations................. 16
50-203 Rules of practice........................... 16
50-204 Safety and health standards for Federal
supply contracts........................ 23
50-205 Enforcement of safety and health standards
by State officers and employees......... 39
50-210 Statements of general policy and
interpretation not directly related to
regulations............................. 41
[[Page 9]]
PART 50-201--GENERAL REGULATIONS--Table of Contents
Sec.
50-201.1 The Walsh-Healey Public Contracts Act.
50-201.2 Administration of the Act.
50-201.3 Insertion of stipulations.
50-201.4 Statutory exemptions.
50-201.101 Employees affected.
50-201.102 Overtime.
50-201.103 Dealer as agent of undisclosed principal.
50-201.104 Protection against unintentional employment of underage
minors.
50-201.105 Hours worked.
50-201.201 Breach of stipulations.
50-201.301 Agency regulations.
50-201.501 Records of employment.
50-201.502 Record of injuries.
50-201.601 Requests for exceptions and exemptions.
50-201.602 Decisions concerning exceptions and exemptions.
50-201.603 Full administrative exemptions.
50-201.701 Definition of ``person.''
50-201.1101 Minimum wages.
50-201.1102 Tolerance for apprentices, student-learners, and
handicapped workers.
50-201.1201 [Reserved]
50-201.1202 Complaints.
50-201.1203 Other contracts.
Authority: Sec. 4, 49 Stat. 2038; 41 U.S.C. 38. Interpret or apply
sec. 6, 49 Stat. 2038, as amended; 41 U.S.C. 40; 108 Stat. 7201.
Sec. 50-201.1 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 furnishing 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.
[43 FR 22975, May 30, 1978. Redesignated at 61 FR 40716, Aug. 5, 1996]
Sec. 50-201.2 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
[[Page 10]]
``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 regulations, 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 Portal-to-
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.
[43 FR 22975, May 30, 1978. Redesignated at 61 FR 40716, Aug. 5, 1996]
Sec. 50-201.3 Insertion of stipulations.
Except as hereinafter directed, in every contract made and entered
into by an executive department, independent establishment, or other
agency or instrumentality of the United States, or by the District of
Columbia, or by any corporation all the stock of which is beneficially
owned by the United States, for the manufacture or furnishing of
materials, supplies, articles, and equipment, the contracting officer
shall cause to be inserted or incorporated by reference in such
invitation or the specifications and in such contract, the following
stipulations:
Representations and Stipulations Pursuant to Public Law 846, 74th
Congress, as Amended
(a) All persons employed by the contractor in the manufacture or
furnishing of the materials, supplies, articles, or equipment used in
the performance of the contract will be paid, without subsequent
deduction or rebate on any account, not less than the minimum wages as
determined by the Secretary of Labor to be the prevailing minimum wages
for persons employed on similar work or in the particular or similar
industries or groups of industries currently operating in the locality
in which the materials, supplies, articles, or equipment are to be
manufactured or furnished under the contract.
(b) No person employed by the contractor in the manufacture or
furnishing of the materials, supplies, articles, or equipment used in
the performance of the contract shall be permittted to work in excess of
40 hours in any 1 week unless such person is paid such applicable
overtime rate as has been set by the Secretary of Labor: Provided,
however, That the provisions of this stipulation shall not apply to any
employer who shall have entered into an agreement with his employees
pursuant to the provisions of paragraphs 1 or 2 of subsection (b) of
section 7 of an act entitled ``The Fair Labor Standards Act of 1938'':
Provided, further, That in the case of such an employer, during the life
of the agreement referred to the applicable overtime rate set by the
Secretary of Labor shall be paid for hours in excess of 12 in any 1 day
or in excess of 56 in any 1 week and if such overtime is not paid, the
employer shall be required to compensate his employees during that week
at the applicable overtime rate set by the Secretary of Labor for hours
in excess of 40 in any 1 week.
(c) No person under 16 years of age and no convict labor will be
employed by the contractor in the manufacture or production or
furnishing of any of the materials, supplies,
[[Page 11]]
articles, or equipment included in the contract.
(d) No part of the contract will be performed nor will any of the
materials, supplies, articles, or equipment to be manufactured or
furnished under said 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.
Compliance with the safety, sanitary, and factory inspection laws of the
State in which the work or part thereof is to be performed shall be
prima facie evidence of compliance with this paragraph.
(e) Any breach or violation of any of the foregoing representations
and stipulations shall render the party responsible therefor liable to
the United States of America for liquidated damages, in addition to
damages for any other breach of the contract, in the sum of $10 per day
for each person under 16 years of age, or each convict laborer knowingly
employed in the performance of the contract, and a sum equal to the
amount of any deductions, rebates, refunds, or underpayment of wages due
to any employee engaged in the performance of the contract; and, in
addition, the agency of the United States entering into the contract
shall have the right to cancel same and to make open-market purchases or
enter into other contracts for the completion of the original contract,
charging any additional cost to the original contractor. Any sums of
money due to the United States of America by reason of any violation of
any of the representations and stipulations of the contract as set forth
herein may be withheld from any amounts due on the contract or may be
recovered in a suit brought in the name of the United States of America
by the Attorney General thereof. All sums withheld or recovered as
deductions, rebates, refunds, or underpayments of wages shall be held in
a special deposit account and shall be paid, on order of the Secretary
of Labor, directly to the employees who have been paid less than minimum
rates of pay as set forth in such contracts and on whose account such
sums were withheld or recovered: Provided, That no claims by employees
for such payments shall be entertained unless made within 1 year from
the date of actual notice to the contractor of the withholding or
recovery of such sums by the United States of America.
(f) The contractor shall post a copy of the stipulations in a
prominent and readily accessible place at the site of the contract work
and shall keep such employment records as are required in the
regulations under the act available for inspection by authorized
representatives of the Secretary of Labor.
(g) The contractor is not a person who is ineligible to be awarded
Government contracts by virtue of sanctions imposed pursuant to the
provisions of section 3 of the act.
(h) No part of the contract shall be performed and none of the
materials, articles, supplies or equipment manufactured or furnished
under the contract shall be manufactured or furnished by any person
found by the Secretary of Labor to be ineligible to be awarded
Government contracts pursuant to section 3 of the act.
(i) The foregoing stipulations shall be deemed inoperative if this
contract is for a definite amount not in excess of $10,000.
[7 FR 4494, June 16, 1942, as amended at 7 FR 11086, Dec. 30, 1942; 11
FR 6238, June 8, 1946. Redesignated at 24 FR 10952, Dec. 30, 1959, and
amended at 27 FR 306, Jan. 11, 1962; 27 FR 4556, May 12, 1962; 34 FR
6687, Apr. 19, 1969; 34 FR 7451, May 8, 1969; 51 FR 12266, Apr. 9, 1986.
Redesignated and amended at 61 FR 40716, Aug. 5, 1996]
Sec. 50-201.4 Statutory exemptions.
Inclusion of the stipulations enumerated in Sec. 50-201.1 is not
required in the following instances:
(a) Where the contracting officer is authorized by the express
language of a statute to purchase ``in the open market'', or where a
purchase of articles, supplies, materials or equipment, either in being
or virtually so, is made without advertising for bids under
circumstances bringing such purchase within the exception to the General
Purchase Statute, R.S. 3709, that is, where immediate delivery is
required by the public exigency.
(b) Where the contract relates to perishables, including dairy,
livestock, and nursery products (``perishables'' covers products subject
to decay or spoilage and not products canned, salted, smoked, or
otherwise preserved);
(c) Where the contract relates to agricultural or farm products
processed for first sale by the original producers;
(d) Where the contract is by the Secretary of Agriculture for the
purchase of agricultural commodities or the products thereof;
(e) Where the contract is with a common carrier for carriage of
freight or personnel by vessel, airplane, bus, truck, express, or
railway line, where published tariff rates are in effect;
(f) Where the contract is for the furnishing of service by radio,
telephone, telegraph, or cable companies, subject to the Federal
Communications Act of
[[Page 12]]
1934 (48 Stat. 1064 as amended; 47 U.S.C. chapter 5).
[Regs. 504, 1 FR 1626, Sept. 19, 1936, as amended at 9 FR 8347, July 22,
1944. Redesignated at 24 FR 10952, Dec. 30, 1959, and further
redesignated at 61 FR 40716, Aug. 5, 1996]
Sec. 50-201.101 Employees affected.
The stipulations shall be deemed applicable only to employees
engaged in or connected with the manufacture, fabrication, assembling,
handling, supervision, or shipment of materials, supplies, articles, or
equipment required under the contract, and shall not be deemed
applicable to employees performing only office or custodial work, nor to
any employee employed in a bona fide executive, administrative,
professional, or outside salesman capacity, as those terms are defined
and delimited by the regulations (29 CFR part 541) applicable during the
period of performance of the contract under section 13(a)(1) of the Fair
Labor Standards Act of 1938, as amended.
[35 FR 17782, Nov. 19, 1970. Redesignated at 61 FR 40716, Aug. 5, 1996]
Sec. 50-201.102 Overtime.
(a) Employees engaged in or connected with the manufacture,
fabrication, assembling, handling, supervision, or shipment of
materials, supplies, articles, or equipment used in the performance of
the contract may be employed in excess of 40 hours in any one week:
Provided, Such persons shall be paid for any hours in excess of 40 hours
in any one week the overtime rate of pay which has been set therefor by
the Secretary of Labor.
(b) Until otherwise set by the Secretary of Labor the rate of pay
for such overtime shall be one and one-half times the basic hourly rate
received by the employee. The ``basic hourly rate'' means an hourly rate
equivalent to the rate upon which time-and-one-half overtime
compensation may be computed and paid under section 7 of the Fair Labor
Standards Act of 1938, as amended. The basic hourly rate may, in no
case, be less than the applicable minimum wage.
(c) If in any one week or part thereof an employee is engaged in
work covered by the contract's stipulations, overtime shall be paid for
any hours worked in excess of 40 hours in any one week at the overtime
rate set forth in paragraph (b) of this section.
(d) The overtime pay requirements of this section shall be deemed to
be complied with in the case of any employee employed as provided in
section 7(b) of the Fair Labor Standards Act of 1938, as amended,
pursuant to the provisions of paragraph (1) or (2) of that section.
[7 FR 4494, June 16, 1942, as amended at 18 FR 1832, Apr. 2, 1953.
Redesignated at 24 FR 10952, Dec. 30, 1959, as amended at 51 FR 12266,
Apr. 9, 1986. Redesignated at 61 FR 40716, Aug. 5, 1996]
Sec. 50-201.103 Dealer as agent of undisclosed principal.
Whenever a dealer, to whom a contract within the act and regulations
in this part has been awarded, causes a manufacturer to deliver directly
to the Government the materials, supplies, articles, or equipment
required under the contract, such dealer will be deemed the agent of the
manufacturer in executing the contract. As the principal of such agent
the manufacturer will be deemed to have agreed to the stipulations
contained in the contract.
[1 FR 2359, Nov. 28, 1936. Redesignated at 24 FR 10952, Dec. 30, 1959,
and further redesignated at 61 FR 40716, Aug. 5, 1996]
Sec. 50-201.104 Protection against unintentional employment of underage minors.
An employer shall not be deemed to have knowingly employed an
underage minor in the performance of contracts subject to the Act if,
during the period of the employment of such minor, the employer has on
file an unexpired certificate of age issued and held pursuant to
regulations issued by the Secretary of Labor under section 3(1) of the
Fair Labor Standards Act of 1938 (29 CFR 570.121), showing that such
minor is at least 16 years of age.
[52 FR 6147, Mar. 2, 1987. Redesignated at 61 FR 40716, Aug. 5, 1996]
Sec. 50-201.105 Hours worked.
In determining the hours for which an employee is employed, there
shall be excluded any time which is excluded by section 3(o) of the Fair
Labor Standards Act of 1938, as amended, from the
[[Page 13]]
computation of hours worked for purposes of sections 6 and 7 of that
act.
[18 FR 1832, Apr. 2, 1953. Redesignated at 24 FR 10952, Dec. 30, 1959,
and further redesignated at 61 FR 40716, Aug. 5, 1996]
Sec. 50-201.201 Breach of stipulations.
(a) Whenever the Department of Labor notifies the head of a
contracting agency that a contractor is liable for liquidated damages by
reason of a breach of stipulations as provided in section 2 of the act,
there shall be withheld from any balance due under the contract such
amount as may be necessary to satisfy such liability pending final
disposition of the case.
(b) Whenever a final determination of a breach of stipulations is
made, the Secretary of Labor will furnish to the contracting agency a
copy of the findings and decision with such recommendations as will
assist the contracting agency in determining whether or not the contract
should be canceled for such breach.
[Regs. 504, 1 FR 1627, Sept. 19, 1936. Redesignated at 24 FR 10952, Dec.
30, 1959]
50-201.301 Agency regulations.
Each agency which prescribes additional regulations for the
Administration of the Walsh-Healey Public Contracts Act and for the
implementation of the regulations in this part, shall submit such
regulations, directives, and orders to the Administrator of the Wage and
Hour Division prior to issuance. Any such regulations may not be
enforced prior to approval by the Administrator or prior to 60 days
after submission if not disapproved by the Administrator. Currently
existing regulations are not affected by this section, except where such
regulations are not in conformity with the Walsh-Healey Public Contracts
Act and the Department of Labor regulations. In such cases, agency
regulations shall be appropriately revised.
[43 FR 22977, May 30, 1978]
Sec. 50-201.501 Records of employment.
Every contractor subject to the provisions of the act and this part
shall maintain the following records of employment which shall be
available for the inspection and transcription of authorized
representatives of the Secretary of Labor:
(a) Name, address, sex, and occupation of each employee covered by
the contract stipulations;
(b) Date of birth of each employee under 19 years of age; and if the
employer has obtained a certificate of age as provided in Sec. 50-
201.105, there shall also be recorded the title and address of the
office issuing such certificate, the number of the certificate, if any,
the date of its issuance, and the name, address and date of birth of the
minor, as the same appears on the certificate of age;
(c) Wage-and-hour records for each such employee including the rate
of wages and the amount paid each pay period, the hours worked each day
and each week, and the period during which each such employee was
engaged on a Government contract with the number of such contract.
Compliance with this paragraph shall be deemed complete if wage-and-hour
records for all employees in the plant are maintained during the period
between the award of any Government contract and the date of delivery of
the materials, supplies, articles, or equipment: Provided, That where no
separate records for employees engaged on Government contracts are
maintained, it shall be presumed until affirmative proof is present to
the contrary that all employees in the plant, from the date of award of
any such contract until the date of delivery of the materials, supplies,
articles or equipment, were engaged on such Government contract;
(d) The records required by paragraphs (a), (b), and (c) of this
section shall be kept on file for at least 3 years from their last date
of entry;
(e) Basic employment and earnings records: All basic time and
earning cards or sheets of the employer on which are entered the daily
starting and stopping time of individual employees or of separate work
forces, or the individual employees' daily, weekly, or pay period
amounts of work accomplished (for example, units produced) when those
amounts determine in whole or in part the pay period earnings or wages
of those employees;
[[Page 14]]
(f) Wage rate tables: All tables or schedules of the employer which
provide the piece rates or other rates used in computing straight-time
earnings, wages or salary, or overtime excess compensation;
(g) Work time schedules: All schedules or tables of the employer
which establish the hours and days of employment of individual employees
or of separate work forces;
(h) The records required by paragraphs (e), (f), and (g) of this
section shall be kept on file at least 2 years from their last date of
entry or their last effective date whichever is later.
(Approved by the Office of Management and Budget under control number
1215-0017)
[7 FR 7949, Oct. 7, 1942, as amended at 13 FR 5440, Sept. 17, 1948; 23
FR 2573, Apr. 18, 1958. Redesignated at 24 FR 10952, Dec. 30, 1959, and
amended at 47 FR 145, Jan. 5, 1982]
Sec. 50-201.502 Record of injuries.
Every person who is or shall become a party to a Government contract
which is subject to the provisions of the Walsh-Healey Public Contracts
Act and the regulations thereunder, or who is performing or shall
perform any part of such contract subject to the provisions of such Act
or regulations, shall comply with the recordkeeping requirements of 29
CFR Part 1904.
[36 FR 20676, Oct. 28, 1971]
Sec. 50-201.601 Requests for exceptions and exemptions.
(a)(1) Request for the exception or exemption of a contract or class
of contracts from the inclusion or application of one or more of those
stipulations required by Sec. 50-201.1 must be made by the head of a
contracting agency or department and shall be accompanied with a finding
by him setting forth reasons why such inclusion or application will
seriously impair the conduct of Government business.
(2) Request for the exception or exemption of a stipulation
respecting minimum rates of pay and maximum hours of labor contained in
an existing contract must be made jointly by the head of the contracting
agency and the contractor and shall be accompanied with a joint finding
by them setting forth reasons why such exception or exemption is
desired.
(b) All requests for exceptions or exemptions which relate solely to
safety and health standards shall be transmitted directly to the
Occupational Safety and Health Administration, U.S. Department of Labor,
Washington, DC 20210, or, for those pertaining to coal mines, the Mine
Safety and Health Administration, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203. All other requests for exceptions or
exemptions shall be transmitted to the Administrator of the Wage and
Hour Division, Employment Standards Administration, U.S. Department of
Labor, Washington, DC 20210.
[7 FR 4767, June 26, 1942. Redesignated at 24 FR 10952, Dec. 30, 1959
and amended at 36 FR 288, Jan. 8, 1971; 52 FR 6147, Mar. 2, 1987]
Sec. 50-201.602 Decisions concerning exceptions and exemptions.
Decisions concerning exceptions and exemptions shall be in writing
and approved by the Secretary of Labor or authorized representative, and
shall be transmitted to the department or agency originating the request
and to the Comptroller General. All such decisions containing
significant issues of general applicability shall be disseminated to all
contracting agencies by the Wage and Hour Division, ESA, of the
Department of Labor.
[52 FR 6147, Mar. 2, 1987]
Sec. 50-201.603 Full administrative exemptions.
The following classes of contracts have been exempted from the
application of Sec. 50-201.1 pursuant to the procedure required under
section 6 of the act:
(a) Contracts for public utility services including electric light
and power, water, steam, and gas;
(b) Contracts for materials, supplies, articles, or equipment no
part of which will be manufactured or furnished within the geographic
limits of the States of the United States of America, Puerto Rico, the
Virgin Islands, or the District of Columbia: In addition, the
representations and stipulations required by the act and this part in
any
[[Page 15]]
contract for materials, supplies, articles, or equipment to be
manufactured or furnished in part within and in part outside such
geographic limits shall not be applicable to any work performed under
the contract outside such geographic limits;
(c) Contracts covering purchases against the account of a defaulting
contractor where the stipulations required in this section were not
included in the defaulted contract;
(d) Contracts awarded to sales' agents or publisher representatives,
for the delivery of newspapers, magazines or periodicals by the
publishers thereof.
[25 FR 12553, Dec. 8, 1960]
Sec. 50-201.701 Definition of ``person.''
Whenever used in the regulations in this part, the word person
includes one or more individuals, partnerships, associations,
corporations, legal representatives, trustees, trustees in bankruptcy,
or receivers.
[1 FR 1627, Sept. 19, 1936. Redesignated at 24 FR 10952, Dec. 30, 1959]
Sec. 50-201.1101 Minimum wages.
Determinations of prevailing minimum wages or changes therein will
be published in the Federal Register by the Wage and Hour Division, ESA,
of the Department of Labor.
[52 FR 6147, Mar. 2, 1987]
Sec. 50-201.1102 Tolerance for apprentices, student-learners, and handicapped workers.
(a) Apprentices, student-learners, and workers, whose earning
capacity is impaired by age or physical or mental deficiencies or
injuries may be employed at wages lower than the prevailing minimum
wages, determined by the Secretary of Labor pursuant to section 1(b) of
the Public Contracts Act, in accordance with the same standards and
procedures as are prescribed for the employment of apprentices, student-
learners, handicapped persons, and handicapped clients of sheltered
workshops under section 14 of the Fair Labor Standards Act of 1938, and
by the regulations of the Administrator of the Wage and Hour Division of
the Department of Labor issued thereunder (29 CFR parts 520, 521, 524,
525, and 528).
(b) Any certificate in effect pursuant to such regulations shall
constitute authorization for employment of that worker under the Public
Contracts Act in accordance with the terms of the certificate, insofar
as the prevailing minimum wage is concerned.
(c) The Administrator is authorized to issue certificates under the
Public Contracts Act for the employment of apprentices, student-
learners, handicapped persons, or handicapped clients of sheltered
workshops not subject to the Fair Labor Standards Act of 1938, or
subject to different minimum rates of pay under the two acts, at
appropriate rates of compensation and in accordance with the standards
and procedures prescribed by the applicable regulations issued under the
Fair Labor Standards Act of 1938 (29 CFR parts 520, 521, 524, and 525).
(d) The Administrator is also authorized to withdraw, annul, or
cancel such certificates in accordance with the regulations set forth in
29 CFR parts 525 and 528.
[28 FR 9529, Aug. 30, 1963, as amended at 52 FR 6147, Mar. 2, 1987]
Sec. 50-201.1201 [Reserved]
Sec. 50-201.1202 Complaints.
Whenever any officer or employee of the United States Government or
of any agency thereof has any knowledge of, or receives any complaint
with respect to, a breach or violation of the stipulations required
under Sec. 50-201.1, he shall transmit such complaint according to the
usual practice in his department to the Department of Labor, together
with such other information as he has in his possession.
[1 FR 1627, Sept. 19, 1936. Redesignated at 24 FR 10952, Dec. 30, 1959]
Sec. 50-201.1203 Other contracts.
Nothing in this part shall be construed as impairing the authority
possessed by any contracting agency to require labor standards in
contracts not covered by this act.
[1 FR 1627, Sept. 19, 1936. Redesignated, at 24 FR 10952, Dec. 30, 1959]
[[Page 16]]
PART 50-202--MINIMUM WAGE DETERMINATIONS--Table of Contents
Subpart A--Application and Scope
Sec.
50-202.1 Application and scope.
Subpart B--Groups of Industries
50-202.2 Minimum wage in all industries.
50-202.3 Learners, student learners, apprentices, and handicapped
workers.
Subpart C--[Reserved]
Cross Reference: For regulations relative to employment of learners,
see 29 CFR Part 522.
Authority: Secs. 1, 4, and 6, 49 Stat. 2036, 2038; 41 U.S.C. 35, 38,
40. Sec. 10, 66 Stat. 308; 41 U.S.C. 43a.
Subpart A--Application and Scope
Sec. 50-202.1 Application and scope.
Not less than the minimum wages prescribed in this part shall be
paid to employees described in Sec. 50-201.102 of this chapter when
their work relates to contracts subject to the Walsh-Healey Public
Contracts Act. The minimum wages prescribed in this part shall apply to
all contracts bids for which are solicited or negotiations otherwise
commenced on or after the effective date of the applicable
determination. Nothing in this part shall affect any obligations for the
payment of minimum wages that an employer may have under any law or
agreement more favorable to employees than than the requirements of this
part.
(Secs. 1, 4, 49 Stat. 2036, 2038; 41 U.S.C. 35, 38)
[26 FR 9043, Sept. 26, 1961]
Subpart B--Groups of Industries
Sec. 50-202.2 Minimum wage in all industries.
In all industries, the minimum wage applicable to employees
described in Sec. 50-201.102 of this chapter shall be not less than
$3.35 per hour commencing January 1, 1981, $3.80 per hour commencing
April 1, 1990, and $4.25 per hour commencing April 1, 1991.
[56 FR 32258, July 15, 1991]
Sec. 50-202.3 Learners, student learners, apprentices, and handicapped workers.
Learners, student learners, apprentices, and handicapped workers may
be employed at less than the minimum wage prescribed in Sec. 50-202.2 to
the same extent such employment is permitted under section 14 of the
Fair Labor Standards Act.
(Sec. 6, 49 Stat. 2038; 41 U.S.C. 40)
[43 FR 28495, June 30, 1978]
Subpart C--[Reserved]
PART 50-203--RULES OF PRACTICE--Table of Contents
Subpart A--Proceedings Under Section 5 of the Walsh-Healey Public
Contracts Act
Sec.
50-203.1 Reports of breach or violation.
50-203.2 Issuance of a formal complaint.
50-203.3 Answer.
50-203.4 Motions.
50-203.5 Intervention.
50-203.6 Witnesses and subpoenas.
50-203.7 Prehearing conferences.
50-203.8 Hearing.
50-203.9 Briefs.
50-203.10 Decision of the administrative law judge.
50-203.11 Review.
50-203.12 Effective date.
Subpart B--Exceptions and Exemptions Pursuant to Section 6 of the Walsh-
Healey Public Contracts Act
50-203.13 Requests for exceptions and exemptions.
50-203.14 Decisions concerning exceptions and exemptions.
Subpart C--Minimum Wage Determinations Under the Walsh-Healey Public
Contracts Act
50-203.15 Initiation of proceeding.
50-203.16 Industry panel meetings.
50-203.17 Hearings.
50-203.18 Evidence.
50-203.19 Subpoenas and witness fees.
50-203.20 Examination of witnesses.
50-203.21 Decisions.
50-203.22 Effective date of determinations.
Authority: Sec. 4, 49 Stat. 2038; 41 U.S.C. 38.
[[Page 17]]
Subpart A--Proceedings Under Section 5 of the Walsh-Healey Public
Contracts Act
Source: 11 FR 14493, Dec. 18, 1946, unless otherwise noted.
Redesignated at 24 FR 10952, Dec. 30, 1959.
Sec. 50-203.1 Reports of breach or violation.
(a) Any employer, employee, labor or trade organization or other
interested person or organization may report a breach or violation, or
apparent breach or violation of the Walsh-Healey Public Contracts Act of
June 30, 1936 (49 Stat. 2036, as amended; 41 U.S.C. 35-45), or of any of
the rules or regulations prescribed thereunder.
(b) A report of breach or violation may be reported to the nearest
office of the Wage and Hour Division, Employment Standards
Administration or with the Administrator, Wage and Hour Division,
Employment Standards Administration, 200 Constitution Avenue, NW.,
Washington, D.C. 20210.
(c) [Reserved]
(d) In the event that the Wage and Hour Division is notified of a
breach or violation which also involves safety and health standards,
such Director shall notify the appropriate Regional Director of the
Bureau of Labor Standards who shall with respect to the safety and
health violation take action commensurate with his responsibilities
pertaining to safety and health standards.
(e) The report should contain the following:
(1) The full name and address of the person or organization
reporting the breach or violation.
(2) The full name and address of the person against whom the report
is made, hereinafter referred to as the ``respondent''.
(3) A clear and concise statement of the facts constituting the
alleged breach or violation of any of the provisions of the Walsh-Healey
Public Contracts Act, or of any of the rules or regulations prescribed
thereunder.
(41 U.S.C. 35, 40; 5 U.S.C. 556)
[32 FR 7702, May 26, 1967, as amended at 36 FR 288, Jan. 8, 1971; 61 FR
19987, May 3, 1996]
Sec. 50-203.2 Issuance of a formal complaint.
After a report of a breach or violation has been filed, or upon his
own motion and without any report of a breach or violation having been
previously filed, the Solicitor may issue and cause to be served upon
the respondent a formal complaint stating the charges. Notice of hearing
before an administrative law judge designated by the Secretary of Labor
shall be issued and served within a reasonable time after the issuance
of the complaint. A copy of the complaint and notice of hearing shall be
served upon the surety or sureties. Unless the administrative law judge
otherwise determines, the date of hearing shall not be sooner than 30
days after the date of issuance of the complaint.
[35 FR 14839, Sept. 24, 1970, as amended at 61 FR 19987, May 3, 1996]
Sec. 50-203.3 Answer.
(a) The respondent shall have the right, unless otherwise specified
in the complaint and notice, within twenty (20) days after date of
issuance of the formal complaint, to file an answer thereto. Such answer
shall not be limited to a mere denial of the charges. It shall
specifically deny or admit each of the charges, and, if the answer is in
denial of any one of the charges, it shall contain a concise statement
of the facts relied upon in support of the denial. Any charges not
specifically denied in the answer shall be deemed to be admitted and may
be so found by the the administrative law judge, unless the respondent
disclaims knowledge upon which to make a denial. If the answer should
admit any charge but the respondent believes there are reasons or
circumstances warranting special consideration, such reasons and
circumstances should be fully but concisely stated.
(b) Such answer shall be in writing, and signed by the respondent or
his attorney or by any other duly authorized agent with power of
attorney affixed.
(c) If no answer is filed, or if the answer as filed does not
warrant a postponement of the hearing, such hearing will be held as
scheduled.
[[Page 18]]
(d) The original and two copies of the answer shall be filed with
the Chief administrative law judge, Department of Labor, Washington,
D.C.
(e) In any case where formal complaints have been amended, the
respondent shall have the right to amend his answer within such time as
may be fixed by the administrative law judge.
[11 FR 14493, Dec. 18, 1946. Redesignated at 24 FR 10952, Dec. 30, 1959,
as amended at 61 FR 19987, May 3, 1996]
Sec. 50-203.4 Motions.
(a) All motions except those made at the hearing shall be filed in
writing with the Chief administrative law judge, Department of Labor,
Washington, D.C., and shall be included in the record. Such motions
shall state briefly the order or relief applied for and the grounds for
such motion. The moving party shall file an original and two copies of
all such motions. All motions made at the hearing shall be stated orally
and included in the stenographic report of the hearing.
(b) The administrative law judge designated to conduct the hearing
may in his discretion reserve his ruling upon any question or motion.
[11 FR 14493, Dec. 18, 1946. Redesignated at 24 FR 10952, Dec. 30, 1959,
as amended at 61 FR 19987, May 3, 1996]
Sec. 50-203.5 Intervention.
Any employer, employee, labor or trade organization or other
interested person or organization desiring to intervene in any pending
proceeding prior to, or at the time it is called for hearing, but not
after a hearing, except for good cause shown, shall file a petition in
writing for leave to intervene, which shall be served on all parties to
the proceeding, with the Chief administrative law judge, Department of
Labor, or with the administrative law judge designated to conduct the
hearing, setting forth the position and interest of the petitioner and
the grounds of the proposed intervention. The Chief administrative law
judge, or the administrative law judge, as the case may be, may grant
leave to intervene to such extent and upon such terms as he shall deem
just.
[11 FR 14493, Dec. 18, 1946. Redesignated at 24 FR 10952, Dec. 30, 1959,
as amended at 61 FR 19987, May 3, 1996]
Sec. 50-203.6 Witnesses and subpoenas.
(a) Witnesses shall be examined orally under oath except that for
good and exceptional cause the administrative law judge may permit their
testimony to be taken by deposition under oath.
(b) The administrative law judge shall upon application by any
party, and upon a showing of general relevance and reasonable scope of
the evidence sought, issue subpoenas requiring the attendance and
testimony of witnesses and the production of evidence under oath,
including books, records, correspondence, or documents. Applications for
the issuance of subpoenas duces tecum shall specify the books, records,
correspondence or other documents sought.
(c) Witnesses summoned before the administrative law judge shall be
paid the same fees and mileage that are paid witnesses in the courts of
the United States, and witnesses whose depositions are taken and the
persons taking the same shall severally be entitled to the same fees as
are paid for like services in the courts of the United States. Witness
fees and mileage shall be paid by the party at whose instance the
witnesses appear, and the person taking the depositions shall be paid by
the party at whose instance the depositions are taken.
[11 FR 14493, Dec. 18, 1946. Redesignated at 24 FR 10952, Dec. 30, 1959,
and amended at 36 FR 289, Jan. 8, 1971; 61 FR 19987, May 3, 1996]
Sec. 50-203.7 Prehearing conferences.
(a) At any time prior to the hearing the administrative law judge
may, on motion of the parties or on his own motion, whenever it appears
that the public interest will be served thereby, direct the parties to
appear before him for a conference at a designated time and place to
consider, among other things:
(1) Simplification of the issues;
(2) The necessity or desirability of amending the pleadings for
purposes of clarification, amplification or limitation;
[[Page 19]]
(3) Obtaining stipulations of fact or admissions of undisputed facts
or the authenticity of documents;
(4) The procedure at the hearing;
(5) Limiting the number of witnesses;
(6) The propriety of mutual exchange among parties of prepared
testimony or exhibits; or
(7) Any other matters which would tend to expedite the disposition
of the proceeding.
(b) The action taken at the conference may be recorded, in summary
form or otherwise, for use at the hearing. Such record, when agreed to
by the parties and approved by the administrative law judge, shall be
conclusive as to the action embodied therein. Stipulations and
admissions of fact and amendments to pleadings shall be made a part of
the record of the proceeding.
[11 FR 14493, Dec. 18, 1946. Redesignated at 24 FR 10952, Dec. 30, 1959,
as amended at 61 FR 19987, May 3, 1996]
Sec. 50-203.8 Hearing.
(a) The hearing for the purpose of taking evidence upon a formal
complaint shall be conducted by an administrative law judge.
Administrative law judges shall, so far as practicable, be assigned to
cases in rotation. In case of the death, illness, disqualification or
unavailability of the administrative law judge presiding in any
proceeding, another administrative law judge may be designated to take
his place. Such hearings shall be open to the public unless otherwise
ordered by the administrative law judge.
(b) The administrative law judges shall perform no duties
inconsistent with their duties and responsibilities as administrative
law judges. Save to the extent required for the disposition of ex parte
matters as authorized by law, no administrative law judge shall consult
any person or party as to any fact in issue unless upon notice and
opportunity for all parties to participate.
(c) Administrative law judges shall act independently in the
performance of their functions as administrative law judge and shall not
be responsible to, or subject to the supervision or direction of, any
officer, employee or agent engaged in the performance of investigative
or prosecuting functions for the Department of Labor in the enforcement
of the Public Contracts Act.
(d) At all hearings it shall be the right of counsel for the
Government to open and close, subject to the right of the administrative
law judge to designate, upon cause shown, who shall open and close.
(e) It shall be the duty of the administrative law judge to inquire
fully into the facts as to whether the respondent has breached or
violated any of the provisions of the Walsh-Healey Public Contracts Act
of June 30, 1936 (49 Stat. 2036, as amended; 41 U.S.C. 35-45), or any
rules or regulations prescribed thereunder, as set forth in the formal
complaint. Counsel for the Government, and the administrative law judge,
shall have the power to call, examine, and cross-examine witnesses and
to introduce into the record documentary or other evidence.
(f) Any party to the proceeding shall have the right to appear at
such hearing in person, by counsel, or otherwise, to call, examine, and
cross-examine witnesses, and to introduce into the record documentary or
other evidence.
(g) In any such proceedings, the rules of evidence prevailing in
courts of law or equity shall not be controlling. However, it shall be
the policy to exclude irrelevant, immaterial, or unduly repetitious
evidence.
(h) In any such proceedings, in the discretion of the administrative
law judge, stipulations of fact may be made with respect to any issue.
(i) Any objection with respect to the conduct of the hearing,
including any objection to the introduction of evidence, shall be stated
orally, together with a short statement of the grounds for such
objection, and included in the stenographic report of the hearing. No
such objection shall be deemed waived by further participation in the
proceeding.
(j) Unless the administrative law judge otherwise directs, any party
to the proceeding shall be entitled to a reasonable period at the close
of the hearing for oral argument, which shall not be included in the
stenographic report of the hearing unless the administrative law judge
directs.
(k) In the discretion of the administrative law judge, the hearing
may be
[[Page 20]]
continued from day to day, or adjourned to a later date, or to a
different place, by announcement thereof at the hearing by the
administrative law judge, or by other appropriate notice.
(l) Contemptuous conduct at any hearing before an administrative law
judge shall be ground for exclusion from the hearing. The failure or
refusal of a witness to appear at any such hearing or to answer any
question which has been ruled to be proper shall be ground for the
action provided in section 5 of the Walsh-Healey Public Contracts Act of
June 30, 1936 (sec. 5, 49 Stat. 2039; 41 U.S.C. 39), and in the
discretion of the administrative law judge may be ground for the
striking out of all testimony which may have been previously given by
such witness on related matters.
[11 FR 14493, Dec. 18, 1946. Redesignated at 24 FR 10952, Dec. 30, 1959,
and amended at 36 FR 289, Jan. 8, 1971; 61 FR 19987, May 3, 1996; 61 FR
32910, June 25, 1996]
Sec. 50-203.9 Briefs.
(a) Any interested person or organization shall be entitled to file
with the administrative law judge, Department of Labor, Washington,
D.C., briefs, proposed findings of fact or conclusions of law, or other
written statements, within the time allowed by the administrative law
judge.
(b) Any brief or written statement shall be stated in concise terms.
(c) Three copies of all such documents shall be filed.
(d) Briefs or written statements of more than twenty pages shall be
properly indexed.
[11 FR 14493, Dec. 18, 1946. Redesignated at 24 FR 10952, Dec. 30, 1959,
as amended at 61 FR 19987, May 3, 1996]
Sec. 50-203.10 Decision of the administrative law judge.
(a) Following the hearing and upon completion of the record, the
administrative law judge shall issue an order and decision embodying his
findings of fact and conclusions of law on all issues as to whether
respondent has violated the representations and stipulations of the act
and the amount of damages due therefor, which shall become final, unless
a petition for review is filed under Sec. 50-203.11, before the
expiration of the time provided for the filing of such petition. The
decision of the administrative law judge shall be inoperative unless and
until it becomes final. If the respondent is found to have violated the
act, the administrative law judge in his decision shall make
recommendations to the Administrative Review Board as to whether
respondent should be relieved from the application of the ineligible
list provisions of section 3 of the Walsh-Healey Public Contracts Act of
June 30, 1936 (sec. 3, 49 Stat. 2037; 41 U.S.C. 37).
(b) The decision of the administrative law judge shall be made part
of the record, and a copy thereof shall be served upon the respondent or
respondents by mailing a copy thereof by registered mail to the
respondent or respondents or to the attorney or attorneys of record.
Upon request from employees or other interested persons, the decision
will be served upon such persons, and in the discretion of the
administrative law judge, the decision will be served upon such other
persons or their attorneys who appeared at the hearing or upon brief by
mailing a copy thereof to such persons.
[11 FR 14493, Dec. 18, 1946. Redesignated at 24 FR 10952, Dec. 30, 1959,
as amended at 61 FR 19987, May 3, 1996]
Sec. 50-203.11 Review.
(a) Within twenty (20) days after service of the decision of the
administrative law judge any interested party to the proceeding may file
with the Chief administrative law judge an original and four copies of a
petition for review of the decision. The petition shall set out
separately and particularly each error assigned. The request for review
and the record will then be certified to the Administrative Review
Board.
(b) The petitioner may file a brief (original and four copies) in
support of his petition within the period allowed for the filing of the
petition. Any interested person upon whom the decision has been served
may file within ten (10) days after the expiration of the period within
which the petition is required to be filed a brief in support of or in
opposition to the administrative law judge's decision.
[[Page 21]]
(c) The petition and the briefs filed under this section shall make
specific reference to the pages of the transcript or of the exhibits
which are relevant to the errors asserted with respect to findings of
fact, and objections to such findings which are not so supported will
not be considered.
(d) No matter properly subject to objection before the
administrative law judge will be considered by the Administrative Review
Board unless it shall have been raised before the administrative law
judge or unless there were reasonable grounds for failure so to do; nor
will any matter be considered by the Administrative Review Board unless
included in the assignment or errors. In the discretion of the
Administrative Review Board, review may be denied if the petition and
brief in support thereof fail to show adequate cause for such review.
(e) The order denying review, or the decision of the Administrative
Review Board, whichever is entered, will be made a part of the record,
and a copy of such order or decision will be served upon the parties who
were served with a copy of the administrative law judge's decision.
(f) If the respondent is found to have violated the Act, the
Administrative Review Board shall determine whether respondent shall be
relieved from the application of the ineligible list provisions of
section 3 of the Walsh-Healey Public Contracts Act (sec. 4, 49 Stat.
2039; 41 U.S.C. 37).
[11 FR 14493, Dec. 18, 1946. Redesignated at 24 FR 10952, Dec. 30, 1959,
and amended at 36 FR 289, Jan. 8, 1971; 61 FR 19987, May 3, 1996]
Sec. 50-203.12 Effective date.
The amendments to Subpart A shall become effective upon publication
in the Federal Register May 3, 1996; Provided, however, That in any case
where a hearing has begun or has been completed prior to said
publication, the proceeding shall be conducted pursuant to the rules of
practice in effect at the time the proceeding was initiated unless the
parties stipulate in writing or orally for the record that the
proceeding be conducted in accordance with Secs. 50-203.1 to 50-203.12.
[61 FR 19988, May 3, 1996]
Subpart B--Exceptions and Exemptions Pursuant to Section 6 of the Walsh-
Healey Public Contracts Act
Sec. 50-203.13 Requests for exceptions and exemptions.
(a) Request for the exception or exemption of a contract or class of
contracts from the inclusion or application of one or more of those
stipulations required by Sec. 50-201.1 of this chapter must be made by
the head of a contracting agency or department and shall be accompanied
with a finding by him setting forth reasons why such inclusion or
application will seriously impair the conduct of Government business.
(b) Request for the exception or exemption of a stipulation
respecting minimum rates of pay and maximum hours of labor contained in
an existing contract must be made jointly by the head of a contracting
agency and the contractor and shall be accompanied with a joint finding
by them setting forth reasons why such exception or exemption is
desired.
(c) All requests for exceptions or exemptions which relate solely to
safety and health standards shall be transmitted directly to the Bureau
of Labor Standards, WSA, Department of Labor. All other requests for
exceptions or exemptions shall be transmitted to the Office of
Government Contracts Wage Standards, WSA, of the Department of Labor.
[12 FR 446, Jan. 22, 1947. Redesignated at 24 FR 10952, Dec. 30, 1959,
and amended at 36 FR 289, Jan. 8, 1971]
Sec. 50-203.14 Decisions concerning exceptions and exemptions.
Decisions concerning exceptions and exemptions shall be in writing
and approved by the Secretary of Labor or officer prescribed by him,
originals being filed in the Department of Labor, and certified copies
shall be transferred to the department or agency originating the request
and to the Comptroller General. All such decisions shall be
[[Page 22]]
promulgated to all contracting agencies by the Office of Government
Contracts Wage Standards, WSA of the Department of Labor.
[36 FR 289, Jan. 8, 1971]
Subpart C--Minimum Wage Determinations Under the Walsh-Healey Public
Contracts Act
Source: 17 FR 7944, Aug. 30, 1952, unless otherwise noted.
Redesignated at 24 FR 10952, Dec. 30, 1959.
Sec. 50-203.15 Initiation of proceeding.
Wage determination proceedings may be initiated by the Secretary of
Labor with respect to any industry. The proceedings may be initiated by
the Secretary of Labor upon his own motion or upon the request of any
party showing a proper interest in the industry.
Sec. 50-203.16 Industry panel meetings.
The Secretary of Labor may, within his discretion, invite
representatives of employers and employees in an industry to meet as an
informal panel group to discuss with representatives of the Department
of Labor the various questions relating to the issuance of a wage
determination for the industry.
Sec. 50-203.17 Hearings.
(a) Hearings held for the purpose of receiving evidence with regard
to prevailing minimum wages in the various industries shall be conducted
by an administrative law judge.
(b) Due notice of hearing shall be published in the Federal
Register.
(c) The hearing shall be stenographically reported and a transcript
made which will be available to any person at prescribed rates upon
request addressed to the Secretary, United States Department of Labor,
Washington, DC 20210.
(d) At the discretion of the administrative law judge, the hearing
may be continued from day to day or adjourned to a later date, or to a
different place by announcement thereof at the hearing or by other
appropriate notice.
[17 FR 7944, Aug. 30, 1952. Redesignated at 24 FR 10952, Dec. 30, 1959,
as amended at 61 FR 19988, May 3, 1996]
Sec. 50-203.18 Evidence.
(a) Witnesses appearing at the hearing need not be sworn. The
administrative law judge may, however, within his discretion, require
that witnesses take an oath or affirmation as to testimony submitted.
(b) Written statements may be filed any time prior to the date of
the hearing by persons who cannot appear personally.
(c) Written documents and exhibits shall be tendered in
quadruplicate. When evidence is embraced in a document containing matter
not intended to be put in evidence, within the discretion of the
administrative law judge, such a document will not be received but the
person offering the same may present to the administrative law judge the
original document together with two copies of those portions of the
document intended to be put in evidence.
(d) At any stage of the hearing, the administrative law judge may
call for further evidence upon any matter. After the hearing has been
closed, no further evidence shall be taken, except at the request of the
Administrative Review Board, unless provision has been made at the
hearing for the later receipt of such evidence. In the event that the
Administrative Review Board shall cause the hearing to be reopened for
the purpose of receiving further evidence, due and reasonable notice of
the time and place fixed for such taking of testimony shall be given to
all persons who have appeared at the hearing or filed a notice of
intention to appear at the hearing.
(e) The rules of evidence prevailing in courts of law or equity
shall not be controlling. However, it shall be the policy to exclude
irrelevant, immaterial, or unduly repetitious evidence.
[17 FR 7944, Aug. 30, 1952. Redesignated at 24 FR 10952, Dec. 30, 1959,
as amended at 61 FR 19988, May 3, 1996]
Sec. 50-203.19 Subpoenas and witness fees.
(a) Subpoenas requiring the attendance of witnesses or the
presentation of a document from any place in the United States at any
designated place of hearing shall be issued by the administrative law
judge upon request
[[Page 23]]
and upon a timely showing, in writing, of the general relevance and
reasonable scope of the evidence sought. Any person appearing in the
proceeding may apply for the issuance of a subpoena. Such application
shall identify exactly the witness or document and state fully the
nature of the evidence proposed to be secured.
(b) Witnesses summoned by the Secretary shall be paid the same fees
and mileage as are paid witnesses in the courts of the United States.
Witness fees and mileage shall be paid by the party at whose instance
witnesses appear, and the Secretary before issuing a subpoena may
require a deposit of an amount adequate to cover the fees and mileage
involved.
[17 FR 7944, Aug. 30, 1952. Redesignated at 24 FR 10952, Dec. 30, 1959,
as amended at 61 FR 19988, May 3, 1996]
Sec. 50-203.20 Examination of witnesses.
The administrative law judge shall, consistent with orderly
procedure, permit any person appearing at the hearing to conduct such
examination or cross-examination of any witness as may be required for a
full and true disclosure of the facts, and to object to the admission or
exclusion of evidence. Objections to the admission or exclusion of
evidence shall be stated briefly with the reasons relied on. Such
objections shall become a part of the record, but the record shall not
include argument thereon except as ordered by the administrative law
judge.
[17 FR 7944, Aug. 30, 1952. Redesignated at 24 FR 10952, Dec. 30, 1959,
as amended at 61 FR 19988, May 3, 1996]
Sec. 50-203.21 Decisions.
(a) Within 30 days after the close of the hearing, each interested
person at the hearing may file with the administrative law judge an
original and four copies of a statement containing proposed findings of
fact and conclusions of law, together with reasons for such proposals.
The administrative law judge shall, immediately following the
termination of the thirty-day period provided for the filing of proposed
findings and conclusions, certify the complete record to the
Administrative Review Board.
(b) Upon the basis, and after consideration, of the whole record,
the Administrative Review Board may issue a tentative decision. The
tentative decision shall become part of the record, and shall include:
(1) A statement of findings and conclusions, with the reasons and bases
therefor, upon all material issues of fact, law, or discretion presented
on the record, and (2) any proposed wage determination. Any tentative
decision shall be published in the Federal Register.
(c) Within twenty-one days following the publication of any
tentative decision in the Federal Register, any interested person may
file an original and four copies of a statement containing exemptions to
the tentative decision, together with supporting reasons.
(d) Thereafter, the Administrative Review Board may issue a final
decision ruling upon each exception filed and including any appropriate
wage determination. Any final decision shall be published in the Federal
Register.
[26 FR 8945, Sept. 22, 1961, as amended at 61 FR 19988, May 3, 1996]
Sec. 50-203.22 Effective date of determinations.
Any minimum wage determination issued as a result of hearings held
under this subpart shall take effect not less than 30 days after due
notice is given of the issuance thereof by publication in the Federal
Register, or at such time prior thereto as may be provided therein upon
good cause found and published therewith.
PART 50-204--SAFETY AND HEALTH STANDARDS FOR FEDERAL SUPPLY CONTRACTS--Table of Contents
Subpart A--Scope and Application
Sec.
50-204.1 Scope and application.
50-204.1a Variances.
Subpart B--General Safety and Health Standards
50-204.2 General safety and health standards.
50-204.3 Material handling and storage.
50-204.4 Tools and equipment.
50-204.5 Machine guarding.
[[Page 24]]
50-204.6 Medical services and first aid.
50-204.7 Personal protective equipment.
50-204.8 Use of compressed air.
50-204.10 Occupational noise exposure.
Subpart C--Radiation Standards
50-204.20 Radiation--definitions.
50-204.21 Exposure of individuals to radiation in restricted areas.
50-204.22 Exposure to airborne radioactive material.
50-204.23 Precautionary procedures and personnel monitoring.
50-204.24 Caution signs, labels and signals.
50-204.25 Exceptions from posting requirements.
50-204.26 Exemptions for radioactive materials packaged for shipment.
50-204.27 Instruction of personnel posting.
50-204.28 Storage of radioactive materials.
50-204.29 Waste disposal.
50-204.30 Notification of incidents.
50-204.31 Reports of overexposure and excessive levels and
concentrations.
50-204.32 Records.
50-204.33 Disclosure to former employee of individual employee's
record.
50-204.34 AEC licensees--AEC contractors operating AEC plants and
facilities--AEC agreement State licensees or registrants.
50-204.35 Application for variations from radiation levels.
50-204.36 Radiation standards for mining.
Subpart D--Gases, Vapors, Fumes, Dusts, and Mists
50-204.50 Gases, vapors, fumes, dusts, and mists.
50-204.65 Inspection of compressed gas cylinders.
50-204.66 Acetylene.
50-204.67 Oxygen.
50-204.68 Hydrogen.
50-204.69 Nitrous oxide.
50-204.70 Compressed gases.
50-204.71 Safety relief devices for compressed gas containers.
50-204.72 Safe practices for welding and cutting on containers which
have held combustibles.
Subpart E--Transportation Safety
50-204.75 Transportation safety.
Authority: Secs. 1, 4, 49 Stat. 2036, 2038, as amended; 41 U.S.C.
35, 38; 5 U.S.C. 556.
Source: 34 FR 7946, May 20, 1969, unless otherwise noted.
Subpart A--Scope and Application
Sec. 50-204.1 Scope and application.
(a) The Walsh-Healey Public Contracts Act requires that contracts
entered into by any agency of the United States for the manufacture or
furnishing of materials, supplies, articles, and equipment in any amount
exceeding $10,000 must contain, among other provisions, a stipulation
that ``no part of such contract will be performed nor will any of the
materials, supplies, articles, or equipment to be manufactured or
furnished under said 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 said contract.
Compliance with the safety, sanitary, and factory inspection laws of the
State in which the work or part thereof is to be performed shall be
prima-facie evidence of compliance with this subsection.'' (sec. 1(e)),
49 Stat. 2036, 41 U.S.C. 35(e)). This part 50-204 expresses the
Secretary of Labor's interpretation and application of this provision
with regard to certain particular working conditions. In addition,
Secs. 50-204.27, 50-204.30, 50-204.31, 50-204.32, 50-204.33, and 50-
204.36 contain requirements concerning the instruction of personnel,
notification of incidents, reports of exposures, and maintenance and
disclosure of records.
(b)(1) Every investigator conducting investigations and every
officer of the Department of Labor determining whether there are or have
been violations of the safety and health requirements of the Walsh-
Healey Public Contracts Act and of any contract subject thereto; and
whether a settlement of the resulting issues should be made without
resort to administrative or court litigation, shall treat a failure to
comply with, or violation of, any of the safety and health measures
contained in this part 50-204 as resulting in working conditions which
are ``unsanitary or hazardous or dangerous to the health and safety of
employees'' within the meaning of section 1(e) of the Act
[[Page 25]]
and the contract stipulation it requires. Evidence of compliance with
the safety, sanitary, and factory inspection laws of a State in which
the work, or part thereof, is performed will be considered prima facie
evidence of compliance with the safety and health requirements of the
Act and of any contract subject thereto, and it shall be sufficient
unless rebutted or overcome by a preponderance of evidence of a failure
to comply with any applicable safety and health rules contained in this
part.
(2) Every investigator shall have technical competence in safety,
industrial hygiene, or both as may be appropriate, in the matters under
investigation.
(c) [Reserved]
(d) The standards expressed in this part 50-204 are for application
to ordinary employment situations; compliance with them shall not
relieve anyone from the obligation to provide protection for the health
and safety of his employees in unusual employment situations. Neither do
such standards purport to describe all of the working conditions which
are unsanitary or hazardous or dangerous to the health and safety of
employees. Where such other working conditions may be found to be
unsanitary or hazardous or dangerous to the health and safety of
employees, professionally accepted safety and health practices will be
used.
(e) Compliance with the standards expressed in this part 50-204 is
not intended, and shall not be deemed to relieve anyone from any other
obligation he may have to protect the health and safety of his
employees, arising from sources other than the Walsh-Healey Public
Contracts Act, such as State, local law or collective bargaining
agreement.
[34 FR 7946, May 20, 1969, as amended at 36 FR 9868, May 29, 1971]
Sec. 50-204.1a Variances.
(a) Variances from standards in this part may be granted in the same
circumstances in which variances may be granted under sections
6(b)(6)(A) or 6(d) of the Williams-Steiger Occupational Safety and
Health Act of 1970 (29 U.S.C. 655). The procedures for the granting of
variances and for related relief under this part are those published in
part 1905 of title 29, Code of Federal Regulations.
(b) Any requests for variances shall also be considered requests for
variances under the Williams-Steiger Occupational Safety and Health Act
of 1970, and any variance from a standard which is contained in this
part and which is incorporated in part 1910 of title 29, Code of Federal
Regulations, shall be deemed a variance from the standard under both the
Walsh-Healey Public Contracts Act and the Williams-Steiger Occupational
Safety and Health Act of 1970. In accordance with the requirements of
Sec. 1954.3(d)(1)(i) of title 29, Code of Federal Regulations, variance
actions taken under State provisions under a State occupational safety
and health plan approved under section 18 of the Occupational Safety and
Health Act of 1970 with regard to State standards found to be at least
as effective as the comparable Federal standards contained in this Part
and incorporated in part 1910 of title 29, Code of Federal Regulations,
shall be deemed a variance action from the standard under both the
Walsh-Healey Public Contracts Act and the Occupational Safety and Health
Act of 1970.
[36 FR 9868, May 29, 1971, as amended at 40 FR 25452, June 16, 1975]
Subpart B--General Safety and Health Standards
Sec. 50-204.2 General safety and health standards.
(a) Every contractor shall protect the safety and health of his
employees by complying with the standards described in the subparagraphs
of this paragraph whenever a standard deals with an occupational safety
or health subject or issue involved in the performance of the contract.
(1) U.S. Department of Labor--Title 29 CFR--
Part 1501--Safety and Health Regulations for Ship Repairing.
Part 1502--Safety and Health Regulations for Shipbuilding.
Part 1503--Safety and Health Regulations for Shipbreaking.
Part 1504--Safety and Health Regulations for Longshoring.
[[Page 26]]
Part 1910--Subpart C through Subpart S (national consensus standards).
(2) U.S. Department of Interior, Bureau of Mines.
(i) In Chapter I of Title 30, Code of Federal Regulations, the
standards requiring safe and healthful working conditions or
surroundings in:
Subchapter B--Respiratory Protective Apparatus; Tests for
Permissibility; Fees.
Subchapter C--Explosives and Related Articles; Tests for Permissibility
and Suitability.
Subchapter D--Electrical Equipment, Lamps, Methane Detectors; Tests for
Permissibility; Fees.
Subchapter O--Coal Mine Health and Safety.
(ii) In Chapter II of Title 30 the standards requiring safe and
healthful working conditions or surroundings in:
Part 211--Coal-Mining Operating and Safety Regulations.
Part 216--Operating and Safety Regulations Governing the Mining of Coal
in Alaska.
Part 221--Oil and Gas Operating Regulations.
Part 231--Operating and Safety Regulations Governing the Mining of
Potash; Oil Shale, Sodium, and Phosphate; Sulphur; and Gold, Silver, or
Quicksilver; and Other Nonmetallic Minerals, Including Silica Sand.
(3) U.S. Department of Transportation: 49 CFR parts 171--179 and 14
CFR part 103 Hazardous material regulation--Transportation of compressed
gases.
(4) U.S. Department of Agriculture Respiratory Devices for
Protection against Certain Pesticides--ARS-33-76-2.
(b) Information concerning the applicability of the standards
prescribed in paragraph (a) of this section may be obtained from the
following offices:
(1) Office of the Bureau of Labor Standards, U.S. Department of
Labor, Railway Labor Building, Washington, DC 20210.
(2) The regional and field offices of the Bureau of Labor Standards
which are listed in the U.S. Government Organization Manual, 1970-71
edition at p. 324.
(c) In applying the safety and health standards referred to in
paragraph (a) of this section the Secretary may add to, strengthen or
otherwise modify any standards whenever he considers that the standards
do not adequately protect the safety and health of employees as required
by the Walsh-Healey Public Contracts Act.
[34 FR 7946, May 20, 1969, as amended at 36 FR 9868, May 29, 1971]
Sec. 50-204.3 Material handling and storage.
(a) Where mechanical handling equipment is used, sufficient safe
clearances shall be allowed for aisles, at loading docks, through
doorways and wherever turns or passage must be made. Aisles and
passageways shall be kept clear and in good repair, with no obstruction
across or in aisles that could create a hazard. Permanent aisles and
passageways shall be appropriately marked.
(b) Storage of material shall not create a hazard. Bags, containers,
bundles, etc. stored in tiers shall be stacked, blocked, interlocked and
limited in height so that they are stable and secure against sliding or
collapse.
(c) Storage areas shall be kept free from accumulation of materials
that constitute hazards from tripping, fire, explosion, or pest
harborage. Vegetation control will be exercised when necessary.
(d) Proper drainage shall be provided.
(e) Clearance signs to warn of clearance limits shall be provided.
(f) Derail and/or bumper blocks shall be provided on spur railroad
tracks where a rolling car could contact other cars being worked, enter
a building, work or traffic area.
(g) Covers and/or guard rails shall be provided to protect personnel
from the hazards of open pits, tanks, vats, ditches, etc.
[34 FR 7946, May 20, 1969; 35 FR 1015, Jan. 24, 1970]
Sec. 50-204.4 Tools and equipment.
Each employer shall be responsible for the safe condition of tools
and equipment used by employees, including tools and equipment which may
be furnished by employees.
Sec. 50-204.5 Machine guarding.
(a) One or more methods of machine guarding shall be provided to
protect the operator and other employees in the machine area from
hazards such as those created by point of operation, in
[[Page 27]]
going nip points, rotating parts, flying chips and sparks. Examples of
guarding methods are--Barrier guards, two hand tripping devices,
electronic safety devices, etc.
(b) General requirements for machine guards. Guards shall be affixed
to the machine where possible and secured elsewhere if for any reason
attachment to the machine is not possible. The guard shall be such that
it does not offer an accident hazard in itself.
(c) Point of Operation Guarding.
(1) Point of operation is the area on a machine where work is
actually performed upon the material being processed.
(2) Where existing standards prepared by organizations listed in
Sec. 50-204.2 provide for point of operation guarding such standards
shall prevail. Other types of machines for which there are no specific
standards, and the operation exposes an employee to injury, the point of
operation shall be guarded. The guarding device shall be so designed and
constructed so as to prevent the operator from having any part of his
body in the danger zone during the operating cycle.
(3) Special hand tools for placing and removing material shall be
such as to permit easy handling of material without the operator placing
a hand in the danger zone. Such tools shall not be in lieu of other
guarding required by this section, but can only be used to supplement
protection provided.
(4) The following are some of the machines which usually require
point of operation guarding:
Guillotine cutters.
Shears.
Alligator shears.
Power presses.
Milling machines.
Power saws.
Jointers.
Portable power tools.
Forming rolls and calenders.
(d) Revolving drums, barrels and containers shall be guarded by an
enclosure which is interlocked with the drive mechanism, so that the
barrel, drum or container cannot revolve unless the guard enclosure is
in place.
(e) When the periphery of the blades of a fan is less than seven (7)
feet above the floor or working level, the blades shall be guarded. The
guard shall have openings no larger than one half (\1/2\) inch.
(f) Machines designed for a fixed location shall be securely
anchored to prevent walking or moving.
Sec. 50-204.6 Medical services and first aid.
(a) The employer shall ensure the ready availability of medical
personnel for advice and consultation on matters of plant health.
(b) In the absence of an infirmary, clinic or hospital in near
proximity to the work place which is used for the treatment of all
injured employees, a person or persons shall be adequately trained to
render first aid. First aid supplies approved by the consulting
physician shall be readily available.
(c) Where the eyes or body of any person may be exposed to injurious
corrosive materials, suitable facilities for quick drenching or flushing
of the eyes and body shall be provided within the work area for
immediate emergency use.
[34 FR 7946, May 20, 1969; 35 FR 1015, Jan. 24, 1970]
Sec. 50-204.7 Personal protective equipment.
Protective equipment, including personal protective equipment for
eyes, face, head, and extremities, protective clothing, respiratory
devices, and protective shields and barriers, shall be provided, used,
and maintained in a sanitary and reliable condition wherever it is
necessary by reason of hazards of processes or environment, chemical
hazards, radiological hazards, or mechanical irritants encountered in a
manner capable of causing injury or impairment in function of any part
of the body through absorption, inhalation or physical contact. Where
employees provide their own protective equipment, the employer shall be
responsible to assure its adequacy, including proper maintenance and
sanitation of such equipment. All personal protective equipment shall be
of safe design and construction for the work to be performed.
[35 FR 1015, Jan. 24, 1970]
[[Page 28]]
Sec. 50-204.8 Use of compressed air.
Compressed air shall not be used for cleaning purposes except where
reduced to less than 30 p.s.i. and then only with effective chip
guarding and personal protective equipment.
Sec. 50-204.10 Occupational noise exposure.
(a) Protection against the effects of noise exposure shall be
provided when the sound levels exceed those shown in Table I of this
section when measured on the A scale of a standard sound level meter at
slow response. When noise levels are determined by octave band analysis,
the equivalent A-weighted sound level may be determined as follows:
[GRAPHIC] [TIFF OMITTED] TC21OC91.015
Equivalent sound level contours. Octave band sound pressure levels may
be converted to the equivalent A-weighted sound level by plotting them
on this graph and noting the A-weighted sound level corresponding to the
point of highest penetration into the sound level contours. This
equivalent A-weighted sound level, which may differ from the actual A-
weighted sound level of the noise, is used to determine exposure limits
from Table I.
(b) When employees are subject to sound exceeding those listed in
Table I of this section, feasible administrative or engineering controls
shall be utilized. If such controls fail to reduce sound levels within
the levels of the table, personal protective equipment shall be provided
and used to reduce sound levels within the levels of the table.
(c) If the variations in noise level involve maxima at intervals of
1 second
[[Page 29]]
or less, it is to be considered continuous.
(d) In all cases where the sound levels exceed the values shown
herein, a continuing, effective hearing conservation program shall be
administered.
Table I
permissible noise exposures \1\
------------------------------------------------------------------------
Sound level
Duration per day, hours dBA slow
response
------------------------------------------------------------------------
8..................................................... 90
6..................................................... 92
4..................................................... 95
3..................................................... 97
2..................................................... 100
1\1/2\................................................ 102
1..................................................... 105
\1/2\................................................. 110
\1/4\ or less......................................... 115
------------------------------------------------------------------------
\1\ When the daily noise exposure is composed of two or more periods of
noise exposure of different levels, their combined effect should be
considered, rather than the individual effect of each. If the sum of
the following fractions: C1/T1+C2/T2 * * * Cn/Tn exceeds unity, then,
the mixed exposure should be considered to exceed the limit value. Cn
indicates the total time of exposure at a specified noise level, and
Tn indicates the total time of exposure permitted at that level.
Exposure to impulsive or impact noise should not exceed 140 dB peak
sound pressure level.
[34 FR 7946, May 20, 1969, as amended at 35 FR 1015, Jan. 24, 1970]
Subpart C--Radiation Standards
Sec. 50-204.20 Radiation--definitions.
As used in this subpart:
(a) Radiation includes alpha rays, beta rays, gamma rays, X-rays,
neutrons, high-speed electrons, high-speed protons, and other atomic
particles; but such term does not include sound or radio waves, or
visible light, or infrared or ultraviolet light.
(b) Radioactive material means any material which emits, by
spontaneous nuclear disintegration, corpuscular or electromagnetic
emanations.
(c) Restricted area means any area access to which is controlled by
the employer for purposes of protection of individuals from exposure to
radiation or radioactive materials.
(d) Unrestricted area means any area access to which is not
controlled by the employer for purposes of protection of individuals
from exposure to radiation or radioactive materials.
(e) Dose means the quantity of ionizing radiation absorbed, per unit
of mass, by the body or by any portion of the body. When the provisions
in this subpart specify a dose during a period of time, the dose is the
total quantity of radiation absorbed, per unit of mass, by the body or
by any portion of the body during such period of time. Several different
units of dose are in current use. Definitions of units used in this
subpart are set forth in paragraphs (f) and (g) of this section.
(f) Rad means a measure of the dose of any ionizing radiation to
body tissues in terms of the energy absorbed per unit of mass of the
tissue. One rad is the dose corresponding to the absorption of 100 ergs
per gram of tissue (1 millirad (mrad)=0.001 rad).
(g) Rem means a measure of the dose of any ionizing radiation to
body tissue in terms of its estimated biological effect relative to a
dose of 1 roentgen (r) of X-rays (1 millirem (mrem)=0.001 rem). The
relation of the rem to other dose units depends upon the biological
effect under consideration and upon the conditions for irradiation. Each
of the following is considered to be equivalent to a dose of 1 rem:
(1) A dose of 1 rad due to X- or gamma radiation;
(2) A dose of 1 rad due to X-, gamma, or beta radiation;
(3) A dose of 0.1 rad due to neutrons or high energy protons;
(4) A dose of 0.05 rad due to particles heavier than protons and
with sufficient energy to reach the lens of the eye;
(5) If it is more convenient to measure the neutron flux, or
equivalent, than to determine the neutron dose in rads, as provided in
paragraph (g)(3) of this section, 1 rem of neutron radiation may, for
purposes of the provisions in this subpart be assumed to be equivalent
to 14 million neutrons per square centimeter incident upon the body; or,
if there is sufficient information to estimate with reasonable accuracy
the approximate distribution in energy of the neutrons, the incident
number of neutrons per square centimeter equivalent to 1 rem may be
estimated from the following table:
[[Page 30]]
Neutron Flux Dose Equivalents
------------------------------------------------------------------------
Number of
neutrons per Average flux to
Neutron energy (million electron square centimeter deliver 100
volts [Mev]) equivalent to a millirem in 40
dose of 1 rem hours (neutrons/
(neutrons/cm\2\) cm\2\ per sec.)
------------------------------------------------------------------------
Thermal........................... 970 x 10\6\ 670
0.0001............................ 720 x 10\6\ 500
0.005............................. 820 x 10\6\ 570
0.02.............................. 400 x 10\6\ 280
0.1............................... 120 x 10\6\ 80
0.5............................... 43 x 10\6\ 30
1.0............................... 26 x 10\6\ 18
2.5............................... 29 x 10\6\ 20
5.0............................... 26 x 10\6\ 18
7.5............................... 24 x 10\6\ 17
10................................ 24 x 10\6\ 17
10 to 30.......................... 14 x 10\6\ 10
------------------------------------------------------------------------
(h) For determining exposures to X-or gamma rays up to 3 Mev., the
dose limits specified in this part may be assumed to be equivalent to
the ``air dose''. For the purpose of this subpart ``air dose'' means
that the dose is measured by a properly calibrated appropriate
instrument in air at or near the body surface in the region of the
highest dosage rate.
Sec. 50-204.21 Exposure of individuals to radiation in restricted areas.
(a) Except as provided in paragraph (b) of this section, no employer
shall possess, use, or transfer sources of ionizing radiation in such a
manner as to cause any individual in a restricted area to receive in any
period of one calendar quarter from sources in the employer's possession
or control a dose in excess of the limits specified in the following
table:
Rems per
calendar
quarter
1. Whole body: Head and trunk; active blood-forming organs; 1\1/4\
lens of eyes; or gonads....................................
2. Hands and forearms; feet and ankles...................... 18\3/4\
3. Skin of whole body....................................... 7\1/2\
(b) An employer may permit an individual in a restricted area to
receive doses to the whole body greater than those permitted under
paragraph (a) of this section, so long as:
(1) During any calendar quarter the dose to the whole body shall not
exceed 3 rems; and
(2) The dose to the whole body, when added to the accumulated
occupational dose to the whole body, shall not exceed 5 (N-18) rems,
where ``N'' equals the individual's age in years at his last birthday;
and
(3) The employer maintains adequate past and current exposure
records which show that the addition of such a dose will not cause the
individual to exceed the amount authorized in this paragraph. As used in
this paragraph ``Dose to the whole body'' shall be deemed to include any
dose to the whole body, gonad, active bloodforming organs, head and
trunk, or lens of the eye.
(c) No employer shall permit any employee who is under 18 years of
age to receive in any period of one calendar quarter a dose in excess of
10 percent of the limits specified in the table in paragraph (a) of this
section.
(d) Calendar quarter means any 3-month period determined as follows:
(1) The first period of any year may begin on any date in January:
Provided, That the second, third, and fourth periods accordingly begin
on the same date in April, July, and October, respectively, and that the
fourth period extends into January of the succeeding year, if necessary
to complete a 3-month quarter. During the first year of use of this
method of determination, the first period for that year shall also
include any additional days in January preceding the starting date for
the first period; or
(2) The first period in a calendar year of 13 complete, consecutive
calendar weeks; the second period in a calendar year of 13 complete,
consecutive calendar weeks; the third period in a calendar year of 13
complete, consecutive calendar weeks; the fourth period in a calendar
year of 13 complete, consecutive calendar weeks. If at the end of a
calendar year there are any days not falling within a complete calendar
week of that year, such days shall be included within the last complete
calendar week of that year. If at the beginning of any calendar year
there are days not falling within a complete calendar week of that year,
such days shall be included within the last complete calendar week of
the previous year; or
(3) The four periods in a calendar year may consist of the first 14
complete, consecutive calendar weeks; the next 12 complete, consecutive
calendar
[[Page 31]]
weeks, the next 14 complete, consecutive calendar weeks, and the last 12
complete, consecutive calendar weeks. If at the end of a calendar year
there are any days not falling within a complete calendar week of that
year, such days shall be included (for purposes of this part) within the
last complete calendar week of the year. If at the beginning of any
calendar year there are days not falling within a complete calendar week
of that year, such days shall be included (for purposes of this part)
within the last complete week of the previous year.
(e) No employer shall change the method used by him to determine
calendar quarters except at the beginning of a calendar year.
Sec. 50-204.22 Exposure to airborne radioactive material.
(a) No employer shall possess, use or transport radioactive material
in such a manner as to cause any employee, within a restricted area, to
be exposed to airborne radioactive material in an average concentration
in excess of the limits specified in Table I of Appendix B to 10 CFR
Part 20. The limits given in Table I are for exposure to the
concentrations specified for 40 hours in any workweek of 7 consecutive
days. In any such period where the number of hours of exposure is less
than 40, the limits specified in the table may be increased
proportionately. In any such period where the number of hours of
exposure is greater than 40, the limits specified in the table shall be
decreased proportionately.
(b) No employer shall possess, use, or transfer radioactive material
in such a manner as to cause any individual within a restricted area,
who is under 18 years of age to be exposed to airborne radioactive
material in an average concentration in excess of the limits specified
in Table II of Appendix B to 10 CFR Part 20. For purposes of this
paragraph, concentrations may be averaged over periods not greater than
1 week.
(c) Exposed as used in this section means that the individual is
present in an airborne concentration. No allowance shall be made for the
use of protective clothing or equipment, or particle size, except as
authorized by the Director, Bureau of Labor Standards.
Sec. 50-204.23 Precautionary procedures and personnel monitoring.
(a) Every employer shall make such surveys as may be necessary for
him to comply with the provisions in this subpart. ``Survey'' means an
evaluation of the radiation hazards incident to the production, use,
release, disposal, or presence of radioactive materials or other sources
of radiation under a specific set of conditions. When appropriate, such
evaluation includes a physical survey of the location of materials and
equipment, and measurements of levels of radiation or concentrations of
radioactive material present.
(b) Every employer shall supply appropriate personnel monitoring
equipment, such as film badges, pocket chambers, pocket dosimeters, or
film rings, to, and shall require the use of such equipment by:
(1) Each employee who enters a restricted area under such
circumstances that he receives, or is likely to receive, a dose in any
calendar quarter in excess of 25 percent of the applicable value
specified in paragraph (a) of Sec. 50-204.21; and
(2) Each employee under 18 years of age who enters a restricted area
under such circumstances that he receives, or is likely to receive, a
dose in any calendar quarter in excess of 5 percent of the applicable
value specified in paragraph (a) of Sec. 50-204.21; and
(3) Each employee who enters a high radiation area.
(c) As used in this subpart:
(1) ``Personnel monitoring equipment'' means devices designed to be
worn or carried by an individual for the purpose of measuring the dose
received (e.g., film badges, pocket chambers, pocket dosimeters, film
rings, etc.);
(2) ``Radiation area'' means any area, accessible to personnel, in
which there exists radiation at such levels that a major portion of the
body could receive in any one hour a dose in excess of 5 millirem, or in
any 5 consecutive days a dose in excess of 100 millirem; and
(3) ``High radiation area'' means any area, accessible to personnel,
in which there exists radiation at such levels
[[Page 32]]
that a major portion of the body could receive in any one hour a dose in
excess of 100 millirem.
Sec. 50-204.24 Caution signs, labels, and signals.
(a) General. (1) Symbols prescribed by this section shall use the
conventional radiation caution colors (magenta or purple on yellow
background). The symbol prescribed by this section is the conventional
three-bladed design:
Radiation Symbol
1. Cross-hatched area is to be magenta or purple.
2. Background is to be yellow.
[GRAPHIC] [TIFF OMITTED] TC21OC91.016
(2) In addition to the contents of signs and labels prescribed in
this section, employers may provide on or near such signs and labels any
additional information which may be appropriate in aiding individuals to
minimize exposure to radiation or to radioactive material.
(b) Radiation areas. Each radiation area shall be conspicuously
posted with a sign or signs bearing the radiation caution symbol and the
words:
Caution 2
---------------------------------------------------------------------------
2 Or ``Danger''.
---------------------------------------------------------------------------
Radiation Area
(c) High radiation area. (1) Each high radiation area shall be
conspicuously posted with a sign or signs bearing the radiation caution
symbol and the words:
Caution 2
High Radiation Area
(2) Each high radiation area shall be equipped with a control device
which shall either cause the level of radiation to be reduced below that
at which an individual might receive a dose of 100 millirems in 1 hour
upon entry into the area or shall energize a conspicuous visible or
audible alarm signal in such a manner that the individual entering and
the employer or a supervisor of the activity are made aware of the
entry. In the case of a high radiation area established for a period of
30 days or less, such control device is not required.
(d) Airborne radioactivity area. (1) As used in the provisions of
this subpart, ``airborne radioactivity area'' means (i) any room,
enclosure, or operating area in which airborne radioactive materials,
composed wholly or partly of radioactive material, exist in
concentrations in excess of the amounts specified in column 1 of Table 1
of Appendix B to 10 CFR Part 20 or (ii) any room, enclosure, or
operating area in which airborne radioactive materials exist in
concentrations which, averaged over the number of hours in any week
during which individuals are in the area, exceed 25 percent of the
amounts specified in column 1 of the described Table 1.
(2) Each airborne radioactivity area shall be conspicuously posted
with a sign or signs bearing the radiation caution symbol and the words:
Caution 2
Airborne Radioactivity Area
(e) Additional requirements. (1) Each area or room in which
radioactive material is used or stored and which contains any
radioactive material (other than natural uranium or thorium) in
[[Page 33]]
any amount exceeding 10 times the quantity of such material specified in
Appendix C to 10 CFR Part 20 shall be conspiciously posted with a sign
or signs bearing the radiation caution symbol and the words:
Caution 2
Radioactive Materials
(2) Each area or room in which natural uranium or thorium is used or
stored in an amount exceeding 100 times the quantity specified in
Appendix C to 10 CFR Part 20 shall be conspicuously posted with a sign
or signs bearing the radiation caution symbol and the words:
Caution 2
Radioactive Materials
(f) Containers. (1) Each container in which is transported, stored,
or used a quantity of any radioactive material (other than natural
uranium or thorium) greater than the quantity of such material specified
in Appendix C to 10 CFR Part 20 shall bear a durable, clearly visible
label bearing the radiation caution symbol and the words:
Caution 2
Radioactive Materials
(2) Each container in which natural uranium or thorium is
transported, stored, or used in a quantity greater than 10 times the
quantity specified in Appendix C to 10 CFR Part 20 shall bear a durable,
clearly visible label bearing the radiation caution symbol and the
words:
Caution 2
Radioactive Materials
---------------------------------------------------------------------------
2 Or ``Danger''.
---------------------------------------------------------------------------
(3) Notwithstanding the provisions of paragraphs (f) (1) and (2) of
this section a label shall not be required:
(i) If the concentration of the material in the container does not
exceed that specified in column 2 of the described Table 1, or
(ii) For laboratory containers, such as beakers, flasks, and tests
tubes, used transiently in laboratory procedures, when the user is
present.
(4) Where containers are used for storage, the labels required in
this paragraph shall state also the quantities and kinds of radioactive
materials in the containers and the date of measurement of the
quantities.
Sec. 50-204.25 Exceptions from posting requirements.
Notwithstanding the provisions of Sec. 50-204.24:
(a) A room or area is not required to be posted with a caution sign
because of the presence of a sealed source, provided the radiation level
12 inches from the surface of the source container or housing does not
exceed 5 millirem per hour.
(b) Rooms or other areas in on-site medical facilities are not
required to be posted with caution signs because of the presence of
patients containing radioactive material, provided that there are
personnel in attendance who shall take the precautions necessary to
prevent the exposure of any individual to radiation or radioactive
material in excess of the limits established in the provisions of this
subpart.
(c) Caution signs are not required to be posted at areas or rooms
containing radioactive materials for periods of less than 8 hours:
Provided, That (1) the materials are constantly attended during such
periods by an individual who shall take the precautions necessary to
prevent the exposure of any individual to radiation or radioactive
materials in excess of the limits established in the provisions of this
subpart; and (2) such area or room is subject to the employer's control.
Sec. 50-204.26 Exemptions for radioactive materials packaged for shipment.
Radioactive materials packaged and labeled in accordance with
regulations of the Department of Transportation shall be exempt from the
labeling and posting requirements during shipment, provided that the
inside containers are labeled in accordance with the provisions of
Sec. 50-204.24.
[[Page 34]]
Sec. 50-204.27 Instruction of personnel posting.
Employers regulated by the AEC shall be governed by ``Sec. 20.206''
(10 CFR Part 20) standards. Employers in a State named in Sec. 50-
204.34(c) shall be governed by the requirements of the laws and
regulations of that State. All other employers shall be regulated by the
following:
(a) All individuals working in or frequenting any portion of a
radiation area shall be informed of the occurrence of radioactive
materials or of radiation in such portions of the radiation area; shall
be instructed in the safety problems associated with exposure to such
materials or radiation and in precautions or devices to minimize
exposure; shall be instructed in the applicable provisions of this
subpart for the protection of employees from exposure to radiation or
radioactive materials; and shall be advised of reports of radiation
exposure which employees may request pursuant to the regulations in this
part.
(b) Each employer to whom this subpart applies shall post a current
copy of its provisions and a copy of the operating procedures applicable
to the work under contract conspicuously in such locations as to ensure
that employees working in or frequenting radiation areas will observe
these documents on the way to and from their place of employment, or
shall keep such documents available for examination of employees upon
request.
Sec. 50-204.28 Storage of radioactive materials.
Radioactive materials stored in a nonradiation area shall be secured
against unauthorized removal from the place of storage.
Sec. 50-204.29 Waste disposal.
No employer shall dispose of radioactive material except by transfer
to an authorized recipient, or in a manner approved by the Atomic Energy
Commission or a State named in Sec. 50-204.34(c).
Sec. 50-204.30 Notification of incidents.
(a) Immediate notification. Each employer shall immediately notify
the Regional Director of the appropriate Wage and Labor Standards
Administration, Office of Occupational Safety of the Bureau of Labor
Standards of the U.S. Department of Labor, for employees not protected
by AEC by means of 10 CFR Part 20, Sec. 50-204.34(b) of this part, or
the requirements of the laws and regulations of States named in Sec. 50-
204.34(c), by telephone or telegraph of any incident involving radiation
which may have caused or threatens to cause:
(1) Exposure of the whole body of any individual to 25 rems or more
of radiation; exposure of the skin of the whole body of any individual
to 150 rems or more of radiation; or exposure of the feet, ankles,
hands, or forearms of any individual to 375 rems or more of radiation;
or
(2) The release of radioactive material in concentrations which, if
averaged over a period of 24 hours, would exceed 5,000 times the limit
specified for such materials in Table II of Appendix B to 10 CFR Part
20.
(3) A loss of 1 working week or more of the operation of any
facilities affected; or
(4) Damage to property in excess of $100,000.
(b) Twenty-four hour notification. Each employer shall within 24
hours following its occurrence notify the Regional Director of the
appropriate Wage and Labor Standards Administration, Office of
Occupational Safety of the Bureau of Labor Standards of the U.S.
Department of Labor, for employees not protected by AEC by means of 10
CFR Part 20, Sec. 50-204.34(b) of this part, or the requirements of the
laws and applicable regulations of States named in Sec. 50-204.34(c), by
telephone or telegraph of any incident involving radiation which may
have caused or threatens to cause:
(1) Exposure of the whole body of any individual to 5 rems or more
of radiation; exposure of the skin of the whole body of any individual
to 30 rems or more of radiation; or exposure of the feet, ankles, hands,
or forearms to 75 rems or more of radiation; or
(2) A loss of 1 day or more of the operation of any facilities; or
(3) Damage to property in excess of $10,000.
[[Page 35]]
Sec. 50-204.31 Reports of overexposure and excessive levels and concentrations.
(a) In addition to any notification required by Sec. 50-204.30 each
employer shall make a report in writing within 30 days to the Regional
Director of the appropriate Wage and Labor Standards Administration,
Office of Occupational Safety of the Bureau of Labor Standards of the
U.S. Department of Labor, for employees not protected by AEC by means of
10 CFR Part 20, or under Sec. 50-204.34(b) of this part, or the
requirements of the laws and regulations of States named in Sec. 50-
204.34(c), of each exposure of an individual to radiation or
concentrations of radioactive material in excess of any applicable limit
in this subpart. Each report required under this paragraph shall
describe the extent of exposure of persons to radiation or to
radioactive material; levels of radiation and concentrations of
radioactive material involved, the cause of the exposure, levels of
concentrations; and corrective steps taken or planned to assure against
a recurrence.
(b) In any case where an employer is required pursuant to the
provisions of this section to report to the U.S. Department of Labor any
exposure of an individual to radiation or to concentrations of
radioactive material, the employer shall also notify such individual of
the nature and extent of exposure. Such notice shall be in writing and
shall contain the following statement: ``You should preserve this report
for future reference.''
Sec. 50-204.32 Records.
(a) Every employer shall maintain records of the radiation exposure
of all employees for whom personnel monitoring is required under
Sec. 50-204.23 and advise each of his employees of his individual
exposure on at least an annual basis.
(b) Every employer shall maintain records in the same units used in
tables in Sec. 50-204.21 and Appendix B to 10 CFR Part 20.
Sec. 50-204.33 Disclosure to former employee of individual employee's record.
(a) At the request of a former employee an employer shall furnish to
the employee a report of the employee's exposure to radiation as shown
in records maintained by the employer pursuant to Sec. 50-204.32(a).
Such report shall be furnished within 30 days from the time the request
is made, and shall cover each calendar quarter of the individual's
employment involving exposure to radiation or such lesser period as may
be requested by the employee. The report shall also include the results
of any calculations and analysis of radioactive material deposited in
the body of the employee. The report shall be in writing and contain the
following statement: ``You should preserve this report for future
reference.''
(b) The former employee's request should include appropriate
identifying data, such as social security number and dates and locations
of employment.
Sec. 50-204.34 AEC licensees--AEC contractors operating AEC plants and facilities--AEC agreement State licensees or registrants.
(a) Any employer who possesses or uses source material, byproduct
material, or special nuclear material, as defined in the Atomic Energy
Act of 1954, as amended, under a license issued by the Atomic Energy
Commission and in accordance with the requirements of 10 CFR Part 20
shall be deemed to be in compliance with the requirements of this
subpart with respect to such possession and use.
(b) AEC contractors operating AEC plants and facilities: Any
employer who possesses or uses source material, byproduct material,
special nuclear material, or other radiation sources under a contract
with the Atomic Energy Commission for the operation of AEC plants and
facilities and in accordance with the standards, procedures, and other
requirements for radiation protection established by the Commission for
such contract pursuant to the Atomic Energy Act of 1954 as amended (42
U.S.C. 2011 et seq.), shall be deemed to be in compliance with the
requirements of this subpart with respect to such possession and use.
(c) AEC-agreement State licensees or registrants:
(1) Atomic Energy Act sources. Any employer who possesses or uses
source
[[Page 36]]
material, byproduct material, or special nuclear material, as defined in
the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.), and
has either registered such sources with, or is operating under a license
issued by, a State which has an agreement in effect with the Atomic
Energy Commission pursuant to section 274(b) (42 U.S.C. 2021(b)) of the
Atomic Energy Act of 1954, as amended, and in accordance with the
requirements of that State's laws and regulations shall be deemed to be
in compliance with the radiation requirements of this part, insofar as
his possession and use of such material is concerned, unless the
Secretary of Labor, after conference with the Atomic Energy Commission,
shall determine that the State's program for control of these radiation
sources is incompatible with the requirements of this part. Such
agreements currently are in effect only in the States of Alabama,
Arkansas, California, Kansas, Kentucky, Florida, Mississippi, New
Hampshire, New York, North Carolina, Texas, Tennessee, Oregon, Idaho,
Arizona, Colorado, Louisiana, Nebraska, and Washington.
(2) Other sources. Any employer who possesses or uses radiation
sources other than source material, byproduct material, or special
nuclear material, as defined in the Atomic Energy Act of 1954, as
amended (42 U.S.C. 2011 et seq.), and has either registered such sources
with, or is operating under a license issued by a State which has an
agreement in effect with the Atomic Energy Commission pursuant to
section 274(b) (42 U.S.C. 2021(b)) of the Atomic Energy Act of 1954, as
amended, and in accordance with the requirements of that State's laws
and regulations shall be deemed to be in compliance with the radiation
requirements of this part, insofar as his possession and use of such
material is concerned, provided the State's program for control of these
radiation sources is the subject of a currently effective determination
by the Secretary of Labor that such program is compatible with the
requirements of this part. Such determinations currently are in effect
only in the States of Alabama, Arkansas, California, Kansas, Kentucky,
Florida, Mississippi, New Hampshire, New York, North Carolina, Texas,
Tennessee, Oregon, Idaho, Arizona, Colorado, Louisiana, Nebraska, and
Washington.
Sec. 50-204.35 Application for variations from radiation levels.
(a) In accordance with policy expressed in the Federal Radiation
Council's memorandum concerning radiation protection guidance for
Federal agencies (25 FR 4402), the Director, Bureau of Labor Standards
may from time to time grant permission to employers to vary from the
limitations contained in Secs. 50-204.21 and 50-204.22 when the extent
of variation is clearly specified and it is demonstrated to his
satisfaction that (1) such variation is necessary to obtain a beneficial
use of radiation or atomic energy, (2) such benefit is of sufficient
value to warrant the variation, (3) employees will not be exposed to an
undue hazard, and (4) appropriate actions will be taken to protect the
health and safety of such employees.
(b) Applications for such variations should be filed with the
Director, Bureau of Labor Standards, U.S. Department of Labor,
Washington, DC 20210.
Sec. 50-204.36 Radiation standards for mining.
(a) For the purpose of this section, a ``working level'' is defined
as any combination of radon daughters in 1 liter of air which will
result in the ultimate emission of 1.3 x 105 million electron
volts of potential alpha energy. The numerical value of the ``working
level'' is derived from the alpha energy released by the total decay of
short-lived radon daughter products in equilibrium with 100 pico-curies
of radon 222 per liter of air. A working level month is defined as the
exposure received by a worker breathing air at one working level
concentration for 4\1/3\ weeks of 40 hours each.
(b)(1) Occupational exposure to radon daughters in mines shall be
controlled so that no individual will receive an exposure of more than 2
working level months in any calendar quarter and no more than 4 working
level months in any calendar year. Actual exposures shall be kept as far
below these values as practicable.
[[Page 37]]
(2) In enforcing this section, the Director of the Bureau of Labor
Standards may at any stage approve variations in individual cases from
the limitation set forth in paragraph (b)(1) of this section to comply
with the requirements of the Act upon a showing to the satisfaction of
the Director by an employer having a mine with conditions resulting in
an exposure of more than 4 working level months but not more than 12
working level months in any 12 consecutive months that (i) under the
particular facts and circumstances involved the working conditions of
the employees so exposed are such that their health and safety are
protected, and (ii) the employer has a bona fide plan to reduce the
levels of exposure to those specified in paragraph (b)(1) of this
section as soon as practicable, but in no event later than January 1,
1971.
(3) Whenever a variation under paragraph (b)(2) of this section is
sought, a request therefor should be submitted in writing to the
Director of the Bureau of Labor Standards, U.S. Department of Labor,
Washington, DC 20210, within 90 days following the end of the calendar
quarter or year, as the case may be.
(c)(1) For uranium mines, records of environmental concentrations in
the occupied parts of the mine, and of the time spent in each area by
each person involved in underground work shall be established and
maintained. These records shall be in sufficient detail to permit
calculations of the exposures, in units of working level months, of the
individuals and shall be available for inspection by the Secretary of
Labor or his authorized agents.
(2) For other than uranium mines and for surface workers in all
mines, paragraph (c)(1) of this section will be applicable: Provided,
however, That if no environmental sample shows a concentration greater
than 0.33 working level in any occupied part of the mine, the
maintenance of individual occupancy records and the calculation of
individual exposures will not be required.
(d)(1) At the request of an employee (or former employee) a report
of the employee's exposure to radiation as shown in records maintained
by the employer pursuant to paragraph (c) of this section, shall be
furnished to him. The report shall be in writing and contain the
following statement:
This report is furnished to you under the provisions of the U.S.
Department of Labor, Radiation Safety and Health Standards (41 CFR 50-
204.36). You should preserve this report for future reference.
(2) The former employee's request should include appropriate
identifying data, such as social security number and dates and locations
of employment.
Subpart D--Gases, Vapors, Fumes, Dusts, and Mists
Sec. 50-204.50 Gases, vapors, fumes, dusts, and mists.
(a) (1) Exposures by inhalation, ingestion, skin absorption, or
contact to any material or substance (i) at a concentration above those
specified in the ``Threshold Limit Values of Airborne Contaminants for
1968'' of the American Conference of Governmental Industrial Hygienists,
except for the ANSI Standards listed in Table I of this section and
except for the values of mineral dusts listed in Table II of this
section, and (ii) concentrations above those specified in Tables I and
II of this section, shall be avoided, or protective equipment shall be
provided and used.
(2) The requirements of this section do not apply to exposures to
airborne asbestos dust. Exposures of employees to airborne asbestos dust
shall be subject to the requirements of 29 CFR 1910.93a.
(b) To achieve compliance with paragraph (a) of this section,
feasible administrative or engineering controls must first be determined
and implemented in all cases. In cases where protective equipment in
addition to other measures is used as the method of protecting the
employee, such protection must be approved for each specific application
by a competent industrial hygienist or other technically qualified
source.
[[Page 38]]
Table II-- Mineral Dusts
------------------------------------------------------------------------
Substance Mppcfe Mg/M\3\
------------------------------------------------------------------------
Silica:
Crystalline:
Quartz (respirable)....................... 250f 10mg/M\3\m
-------------------------
%SiO2=5 %SiO2=2
Quartz (total dust)....................... ........... 30mg/M\3\
------------
%SiO2=2
Cristobalite: Use \1/2\ the value calculated
from the count or mass formulae for quartz.
Tridymite: Use \1/2\ the value calculated
from the formulae for quartz.
Amorphous, including natural diatomaceous 20 80mg/M\3\
earth......................................
------------
%SiO2
============
Silicates (less than 1% crystalline silica):
Mica...................................... 20
Soapstone................................. 20
Talc...................................... 20
Portland cement........................... 50
Graphite (natural).......................... 15
Coat dust (respirable fraction less than 5% ........... 2.4mg/M\3\
SiO2)......................................
or
For more than 5% SiO2....................... ........... 10mg/M\3\
------------
%SiO2=2
Inert or Nuisance Dust:
Respirable fraction....................... 1 5mg/M\3\
Total dust................................ 505 15mg/M3
------------------------------------------------------------------------
Note: Conversion factors--
mppcf x 35.3=million particles per cubic meter
=particles per c.c.
eMillions of particles per cubic foot of air, based on impinger samples
counted by light-field technics.
fThe percentage of crystalline silica in the formula is the amount
determined from air-borne samples, except in those instances in which
other methods have been shown to be applicable.
jAs determined by the membrane filter method at 430 x phase contrast
magnification.
mBoth concentration and percent quartz for the application of this limit
are to be determined from the fraction passing a size-selector with
the following characteristics:
------------------------------------------------------------------------
Percent
Aerodynamic diameter (unit density sphere) passing
selector
------------------------------------------------------------------------
2 90
2.5 75
3.5 50
5.0 25
10 0
------------------------------------------------------------------------
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\3\ in the table for coal dust
is 4.5 Mg/M\3\
[36 FR 23217, Dec. 7, 1971]
Sec. 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.
Sec. 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 in-plant 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 G-1.4-1966.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
[[Page 39]]
shall be in accordance with Compressed Gas Association Pamphlet P-1-
1965.
[35 FR 1015, Jan. 24, 1970]
Sec. 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.
Sec. 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
Sec. 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
to transportation under contracts which are subject to the Walsh-Healey
Public Contracts Act. See also Sec. 50-204.2(a)(3) of this part. When
such requirements are not otherwise applicable, Chapters 10, 11, 12, and
14 of the Uniform Vehicle Code of the National Committee on Uniform
Traffic Laws and Ordinances, 1962 edition, shall be applied whenever
pertinent.
[35 FR 1016, Jan. 24, 1970]
PART 50-205--ENFORCEMENT OF SAFETY AND HEALTH STANDARDS BY STATE OFFICERS AND EMPLOYEES--Table of Contents
Sec.
50-205.1 Purpose and scope.
50-205.2 Definitions.
50-205.3 Agreement with a State agency.
50-205.4 Plan of cooperation.
50-205.5 Inspections by State agency.
50-205.6 Complaints.
50-205.7 Manual of instructions.
50-205.8 Reports of inspections.
50-205.9 Inspections by the Department of Labor.
50-205.10 Modification or termination of agreement.
Authority: Sec. 4, 49 Stat. 2038, 41 U.S.C. 38. Interpret or apply
sec. 1, 49 Stat. 2036, 41 U.S.C. 35.
Source: 27 FR 1270, Feb. 10, 1962, unless otherwise noted.
Sec. 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.
Sec. 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]
[[Page 40]]
Sec. 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.
Sec. 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.
Sec. 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 Secs. 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.
Sec. 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.
Sec. 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]
Sec. 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.
Sec. 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
[[Page 41]]
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. 50-205.10 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.
PART 50-210--STATEMENTS OF GENERAL POLICY AND INTERPRETATION NOT DIRECTLY RELATED TO REGULATIONS--Table of Contents
Sec.
50-210.0 General enforcement policy.
50-210.1 Coverage under the Walsh-Healey Public Contracts Act of truck
drivers employed by oil dealers.
Authority: Sec. 4, 49 Stat. 2038; 41 U.S.C. 38.
Sec. 50-210.0 General enforcement policy.
(a) In order to clarify at this time the practices and policies
which will guide the administration and enforcement of the Fair Labor
Standards Act of 1938 (52 Stat 1060, as amended, 29 U.S.C. 201-219), and
the Walsh-Healey Public Contracts Act (49 Stat. 2036, as amended; 41
U.S.C. 35-45), as affected by the Portal-to-Portal Act of 1947 (Pub. L.
49, 80th Cong.), the following policy is announced effective June 30,
1947:
(b) The investigation, inspection and enforcement activities of all
officers and agencies of the Department of Labor as they relate to the
Fair Labor Standards Act (52 Stat. 1060, as amended, 29 U.S.C. 201-219)
and the Walsh-Healey Public Contracts Act of June 30, 1936 (49 Stat.
2036, as amended; 41 U.S.C. 35-45), will be carried out on the basis
that all employers in all industries whose activities are subject to the
provisions of the Fair Labor Standards Act (52 Stat. 1060, as amended;
29 U.S.C. 201-219) or the Walsh-Healey Public Contracts Act (49 Stat.
2036, as amended; 41 U.S.C. 35-45) are responsible for strict compliance
with the provisions thereof and the regulations issued pursuant thereto.
(c) Any statements, orders, or instructions inconsistent herewith
are rescinded.
Note: The text of Sec. 50-210.0 General enforcement policy is
identical to that of Sec. 775.0 under 29 CFR Chapter V.
[12 FR 3916, June 17, 1947. Redesignated at 24 FR 10952, Dec. 30, 1959]
Sec. 50-210.1 Coverage under the Walsh-Healey Public Contracts Act of truck drivers employed by oil dealers.
(a) The Division of Public Contracts returns to the interpretation
contained in Rulings and Interpretations No. 2 1 with respect
to coverage under the Walsh-Healey Public Contracts Act of truck drivers
employed by oil dealers, by amending section 40(e)(1) of Rulings and
Interpretations No. 3 1 to read as follows:
---------------------------------------------------------------------------
1 Not filed with the Office of the Federal Register.
---------------------------------------------------------------------------
(1) Where the contractor is a dealer, the act applies to employees
at the central distributing plant, including warehousemen, compounders,
and chemists testing the lot out of which the Government order is
filled, the crews engaged in loading the materials in vessels, tank cars
or tank wagons for shipment, and truck drivers engaged in the activities
described in section 37(m) above. 2 However, the contractor
is not required to show that the employees at the bulk stations,
including truck drivers, are employed in accordance with the standards
of the act. (Bulk stations as the term is used herein are intermediate
points of storage between a central distributing plant and service
stations.)
---------------------------------------------------------------------------
2 Refers to Rulings and Interpretation No. 3.
[12 FR 2477, Apr. 17, 1947. Redesignated at 24 FR 10952, Dec. 30, 1959]
[[Page 43]]
CHAPTER 51--COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR
SEVERELY DISABLED
--------------------------------------------------------------------
Part Page
51-1 General..................................... 45
51-2 Committee for Purchase From People Who Are
Blind or Severely Disabled.............. 47
51-3 Central nonprofit agencies.................. 51
51-4 Nonprofit agencies.......................... 53
51-5 Contracting requirements.................... 55
51-6 Procurement procedures...................... 58
51-7 Procedures for environmental analysis....... 64
51-8 Public availabililty of agency materials.... 66
51-9 Privacy Act rules........................... 73
51-10 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Committee
for Purchase From People who are Blind
or Severely Disabled.................... 81
[[Page 45]]
PART 51-1--GENERAL--Table of Contents
Sec.
51-1.1 Policy.
51-1.2 Mandatory source priorities.
51-1.3 Definitions.
Authority: 41 U.S.C. 46-48c.
Source: 56 FR 48976, Sept. 26, 1991, unless otherwise noted.
Sec. 51-1.1 Policy.
(a) It is the policy of the Government to increase employment and
training opportunities for persons who are blind or have other severe
disabilities through the purchase of commodities and services from
qualified nonprofit agencies employing persons who are blind or have
other severe disabilities. The Committee for Purchase from People who
are Blind or Severely Disabled (hereinafter the Committee) was
established by the Javits-Wagner--O'Day Act, Public Law 92-28, 85 Stat.
77 (1971), as amended, 41 U.S.C. 46-48c (hereinafter the JWOD Act). The
Committee is responsible for implementation of a comprehensive program
designed to enforce this policy.
(b) It is the policy of the Committee to encourage all Federal
entities and employees to provide the necessary support to ensure that
the JWOD Act is implemented in an effective manner. This support
includes purchase of products and services published on the Committee's
Procurement List through appropriate channels from nonprofit agencies
employing persons who are blind or have other severe disabilities
designated by the Committee; recommendations to the Committee of new
commodities and services suitable for addition to the Procurement List;
and cooperation with the Committee and the central nonprofit agencies in
the provision of such data as the Committee may decide is necessary to
determine suitability for addition to the Procurement List.
[56 FR 48976, Sept. 26, 1991, as amended at 59 FR 16777, Apr. 8, 1994]
Sec. 51-1.2 Mandatory source priorities.
(a) The JWOD Act mandates that commodities or services on the
Procurement List required by Government entities be procured, as
prescribed in this regulation, from a nonprofit agency employing persons
who are blind or have other severe disabilities, at a price established
by the Committee, if that commodity or service is available within the
normal period required by that Government entity. Except as provided in
paragraph (b) of this section, the JWOD Act has priority, under the
provisions of 41 U.S.C. 48, over any other supplier of the Government's
requirements for commodities and services on the Committee's Procurement
List.
(b) Federal Prison Industries, Inc. has priority, under the
provisions of 18 U.S.C. 4124, over nonprofit agencies employing persons
who are blind or have other severe disabilities in furnishing
commodities for sale to the Government. All or a portion of the
Government's requirement for a commodity for which Federal Prison
Industries, Inc. has exercised its priority may be added to the
Procurement List. However, such addition is made with the understanding
that procurement under the JWOD Act shall be limited to that portion of
the Government's requirement for the commodity which is not available or
not required to be procured from Federal Prison Industries, Inc.
(c) The JWOD Act requires the Committee to prescribe regulations
providing that, in the purchase by the Government of commodities
produced and offered for sale by qualified nonprofit agencies employing
persons who are blind and nonprofit agencies employing persons who have
other severe disabilities, priority shall be accorded to commodities
produced and offered for sale by qualified nonprofit agencies for the
blind. In approving the addition of commodities, to the Procurement
List, the Committee accords priority to nonprofit agencies for the
blind. Nonprofit agencies for the blind and nonprofit agencies employing
persons with severe disabilities have equal priority for services.
Sec. 51-1.3 Definitions.
As used in this chapter:
Agency and Federal agency mean Entity of the Government, as defined
herein.
Blind means an individual or class of individuals whose central
visual acuity
[[Page 46]]
does not exceed 20/200 in the better eye with correcting lenses or whose
visual acuity, if better than 20/200, is accompanied by a limit to the
field of vision in the better eye to such a degree that its widest
diameter subtends an angle no greater than 20 degrees.
Central nonprofit agency means an agency organized under the laws of
the United States or of any State, operated in the interest of the blind
or persons with other severe disabilities, the net income of which does
not incur in whole or in part to the benefit of any shareholder or other
individual, and designated by the Committee to facilitate the
distribution (by direct allocation, subcontract, or any other means) of
orders of the Government for commodities and services on the Procurement
List among nonprofit agencies employing persons who are blind or have
other severe disabilities, to provide information required by the
Committee to implement the JWOD Program, and to otherwise assist the
Committee in administering these regulations as set forth herein by the
Committee.
Committee means the Committee for Purchase from People who are Blind
or Severely Disabled.
Contracting activity means any element of an entity of the
Government that has responsibility for identifying and/or procuring
Government requirements for commodities or services. Components of a
contracting activity, such as a contracting office and an ordering
office, are incorporated in this definition, which includes all offices
within the definitions of ``contracting activity,'' ``contracting
office,'' and ``contract administration office'' contained in the
Federal Acquisition Regulation, 48 CFR 2.101.
Direct labor means all work required for preparation, processing,
and packing of a commodity or work directly related to the performance
of a service, but not supervision, administration, inspection or
shipping.
Fiscal year means the 12-month period beginning on October 1 of each
year.
Government and Entity of the Government mean any entity of the
legislative branch or the judicial branch, any executive agency,
military department, Government corporation, or independent
establishment, the U.S. Postal Service, and any nonappropriated fund
instrumentality under the jurisdiction of the Armed Forces.
Interested person means an individual or legal entity affected by a
proposed addition of a commodity or service to the Procurement List or a
deletion from it.
JWOD Program means the program authorized by the JWOD Act to
increase employment and training opportunities for persons who are blind
or have other severe disabilities through Government purchasing of
commodities and services from nonprofit agencies employing these
persons.
Military resale commodities means commodities on the Procurement
List sold for the private, individual use of authorized patrons of Armed
Forces commissaries and exchanges, or like activities of other
Government departments and agencies.
Nonprofit agency (formerly workshop) means a nonprofit agency for
the blind or a nonprofit agency employing persons with severe
disabilities, as appropriate.
Other severely handicapped and severely handicapped individuals
(hereinafter persons with severe disabilities) mean a person other than
a blind person who has a severe physical or mental impairment (a
residual, limiting condition resulting from an injury, disease, or
congenital defect) which so limits the person's functional capabilities
(mobility, communication, self-care, self-direction, work tolerance or
work skills) that the individual is unable to engage in normal
competitive employment over an extended period of time.
(1) Capability for normal competitive employment shall be determined
from information developed by an ongoing evaluation program conducted by
or for the nonprofit agency and shall include as a minimum, a
preadmission evaluation and a reevaluation at least annually of each
individual's capability for normal competitive employment.
(2) A person with a severe mental or physical impairment who is able
to engage in normal competitive employment because the impairment has
been
[[Page 47]]
overcome or the condition has been substantially corrected is not
``other severely handicapped'' within the meaning of the definition.
Participating nonprofit agency (formerly participating workshop)
means any nonprofit agency which has been authorized by the Committee to
furnish a commodity or service to the Government under the JWOD Act.
Procurement List means a list of commodities (including military
resale commodities) and services which the Committee has determined to
be suitable to be furnished to the Government by nonprofit agencies for
the blind or nonprofit agencies employing persons with severe
disabilities pursuant to the JWOD Act and these regulations.
Qualified nonprofit agency for other severely handicapped
(hereinafter nonprofit agency employing persons with severe
disabilities) (formerly workshop for other severely handicapped) means
an agency organized under the laws of the United States or any State,
operated in the interests of persons with severe disabilities who are
not blind, and the net income of which does not inure in whole or in
part to the benefit of any shareholder or other individual; which
complies with applicable occupational health and safety standards
prescribed by the Secretary of Labor; and which in furnishing
commodities and services (whether or not the commodities or services are
procured under these regulations) during the fiscal year employs persons
with severe disabilities (including blind) for not less than 75 percent
of the work-hours of direct labor required to furnish such commodities
or services.
Qualified nonprofit agency for the blind (hereinafter nonprofit
agency for the blind) (formerly workshop for the blind) means an agency
organized under the laws of the United States or of any State, operated
in the interest of blind individuals, and the net income of which does
not inure in whole or in part to the benefit of any shareholder or other
individual; which complies with applicable occupational health and
safety standards prescribed by the Secretary of Labor; and which in
furnishing commodities and services (whether or not the commodities or
services are procured under these regulations) during the fiscal year
employs blind individuals for not less than 75 percent of the work-hours
of direct labor required to furnish such commodities or services.
State means the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa,
the Commonwealth of the Northern Mariana Islands, and any territory
remaining under the jurisdiction of the Trust Territory of the Pacific
Islands.
[56 FR 48976, Sept. 26, 1991, as amended at 59 FR 16777, Apr. 8, 1994]
PART 51-2--COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED--Table of Contents
Sec.
51-2.1 Membership.
51-2.2 Powers and responsibilities.
51-2.3 Notice of proposed addition or deletion.
51-2.4 Determination of suitability.
51-2.5 Committee decision.
51-2.6 Reconsideration of Committee decision.
51-2.7 Fair market price.
51-2.8 Procurement list.
51-2.9 Oral presentations by interested persons at Committee meetings.
Authority: 41 U.S.C. 46-48c.
Source: 56 FR 48977, Sept. 26, 1991, unless otherwise noted.
Editorial Note: Nomenclature change to 51-2 appears at 59 FR 16777,
Apr. 8, 1994.
Sec. 51-2.1 Membership.
Under the JWOD Act, the Committee is composed of 15 members
appointed by the President. There is one representative from each of the
following departments or agencies of the Government: The Department of
Agriculture, the Department of Defense, the Department of the Army, the
Department of the Navy, the Department of the Air Force, the Department
of Education, the Department of Commerce, the Department of Justice, the
Department of Labor, the Department of Veterans Affairs, and the General
Services Administration. Four members are private citizens: One who is
conversant with the problems incident to the employment of blind
individuals; one who is conversant with the problems incident
[[Page 48]]
to the employment of persons with other severe disabilities; one who
represents blind individuals employed in qualified nonprofit agencies
for the blind; and one who represents persons with severe disabilities
(other than blindness) employed in qualified nonprofit agencies
employing persons with severe disabilities.
Sec. 51-2.2 Powers and responsibilities.
The Committee is responsible for carrying out the following
functions in support of its mission of providing employment and training
opportunities for persons who are blind or have other severe
disabilities and, whenever possible, preparing those individuals to
engage in competitive employment:
(a) Establish rules, regulations, and policies to assure effective
implementation of the JWOD Act.
(b) Determine which commodities and services procured by the Federal
Government are suitable to be furnished by qualified nonprofit agencies
employing persons who are blind or have other severe disabilities and
add those items to the Committee's Procurement List. Publish notices of
addition to the Procurement List in the Federal Register. Disseminate
information on Procurement List items to Federal agencies. Delete items
no longer suitable to be furnished by nonprofit agencies. Authorize and
deauthorize central nonprofit agencies and nonprofit agencies to accept
orders from contracting activities for the furnishing of specific
commodities and services on the Procurement List.
(c) Determine fair market prices for items added to the Procurement
List and revise those prices in accordance with changing market
conditions to assure that the prices established are reflective of the
market.
(d) Monitor nonprofit agency compliance with Committee regulations
and procedures.
(e) Inform Federal agencies about the JWOD Program and the statutory
mandate that items on the Procurement List be purchased from qualified
nonprofit agencies, and encourage and assist entities of the Federal
Government to identify additional commodities and services that can be
purchased from qualified nonprofit agencies. To the extent possible,
monitor Federal agencies' compliance with JWOD requirements.
(f) Designate, set appropriate ceilings on fee paid to these central
nonprofit agencies by nonprofit agencies selling items under the JWOD
Program, and provide guidance to central nonprofit agencies engaged in
facilitating the distribution of Government orders and helping State and
private nonprofit agencies participate in the JWOD Program.
(g) Conduct a continuing study and evaluation of its activities
under the JWOD Act for the purpose of assuring effective and efficient
administration of the JWOD Act. The Committee may study, independently,
or in cooperation with other public or nonprofit private agencies,
problems relating to:
(1) The employment of the blind or individuals with other severe
disabilities.
(2) The development and adaptation of production methods which would
enable a greater utilization of these individuals.
(h) Provide technical assistance to the central nonprofit agencies
and the nonprofit agencies to contribute to the successful
implementation of the JWOD Act.
(i) Assure that nonprofit agencies employing persons who are blind
will have priority over nonprofit agencies employing persons with severe
disabilities in furnishing commodities.
[56 FR 48977, Sept. 26, 1991, as amended at 59 FR 59341, Nov. 16, 1994]
Sec. 51-2.3 Notice of proposed addition or deletion.
At least 30 days prior to the Committee's consideration of the
addition or deletion of a commodity or service to or from the
Procurement List, the Committee publishes a notice in the Federal
Register announcing the proposed addition or deletion and providing
interested persons an opportunity to submit written data or comments on
the proposal. Interested persons submitting comments in bound form
should also submit an unbound copy that is capable of being legibly
photocopied.
[59 FR 59341, Nov. 16, 1994]
[[Page 49]]
Sec. 51-2.4 Determination of suitability.
(a) For a commodity or service to be suitable for addition to the
Procurement List, each of the following criteria must be satisfied:
(1) Employment potential. The proposed addition must demonstrate a
potential to generate employment for persons who are blind or have other
severe disabilities.
(2) Nonprofit agency qualifications. The nonprofit agency (or
agencies) proposing to furnish the item must qualify as a nonprofit
agency serving persons who are blind or have other severe disabilities,
as set forth in part 51-4 of this chapter.
(3) Capability. The nonprofit agency (or agencies) desiring to
furnish a commodity or service under the JWOD Program must satisfy the
Committee as to the extent of the labor operations to be performed and
that it will have the capability to meet Government quality standards
and delivery schedules by the time it assumes responsibility for
supplying the Government.
(4) Level of impact on the current contractor for the commodity or
service. (i) In deciding whether or not a proposed addition to the
Procurement List is likely to have a severe adverse impact on the
current contractor for the specific commodity or service, the Committee
gives particular attention to:
(A) The possible impact on the contractor's total sales, including
the sales of affiliated companies and parent corporations. In addition,
the Committee considers the effects of previous Committee actions.
(B) Whether that contractor has been a continuous supplier to the
Government of the specific commodity or service proposed for addition
and is, therefore, more dependent on the income from such sales to the
Government.
(ii) If there is not a current contract for the commodity or service
being proposed for addition to the Procurement List, the Committee may
consider the most recent contractor to furnish the item to the
Government as the current contractor for the purpose of determining the
level of impact.
(b) In determining the suitability of a commodity or service for
addition to the Procurement List, the Committee also considers other
information it deems pertinent, including comments on a proposal
published in the Federal Register to add the commodity or service to the
Procurement List and information submitted by Government personnel and
interested persons. Because the Committee's authority to establish fair
market prices is separate from its authority to determine the
suitability of a commodity or service for addition to the Procurement
List, the Committee does not consider comments on proposed fair market
prices for commodities and services proposed for addition to the
Procurement List to be pertinent to a suitability determination.
[56 FR 48977, Sept. 26, 1991, as amended at 59 FR 59341, Nov. 16, 1994;
62 FR 66529, Dec. 19, 1997]
Sec. 51-2.5 Committee decision.
The Committee considers the particular facts and circumstances in
each case in determining if a commodity or service is suitable for
addition to the Procurement List. When the Committee determines that a
proposed addition is likely to have a severe adverse impact on a current
contractor, it takes this fact into consideration in deciding not to add
the commodity or service to the Procurement List, or to add only a
portion of the Government requirement for the item. If the Committee
decides to add a commodity or service in whole or in part to the
Procurement List, that decision is announced in the Federal Register
with a notice that includes information on the effective date of the
addition.
[59 FR 59342, Nov. 16, 1994]
Sec. 51-2.6 Reconsideration of Committee decision.
(a) The Committee may reconsider its decision to add items to the
Procurement List if it receives pertinent information which was not
before it when it initially made the decision. Unless otherwise provided
by the Committee, requests for reconsideration from interested persons
must be received by the Committee within 60 days following the effective
date of the addition in question. A request for reconsideration must
include the specific
[[Page 50]]
facts believed by the interested person to justify a decision by the
Committee to modify or reverse its earlier action.
(b) In reconsidering its decision, the Committee will balance the
harm to the party requesting reconsideration if the item remains on the
Procurement List against the harm which the nonprofit agency or its
employees who are blind or have other severe disabilities would suffer
if the item were deleted from the Procurement List. The Committee may
also consider information bringing into question its conclusions on the
suitability criteria on which it based its original decision as factors
weighing toward a decision to delete the item, and information
concerning possible harm to the Government and the JWOD Program as
factors weighing toward confirmation of the original decision.
[56 FR 48977, Sept. 26, 1991, as amended at 59 FR 59342, Nov. 16, 1994]
Sec. 51-2.7 Fair market price.
The Committee is responsible for determining the fair market prices,
and changes thereto, for commodities and services on the Procurement
List. The Committee establishes the initial fair market price at the
time a commodity or service is added to the Procurement List. In cases
where initial prices are not based on competitive bids, the Committee
considers recommendations from contracting activities and the central
nonprofit agency concerned. Prices are revised in accordance with
changing market conditions as reflected primarily by economic indices
and changes in nonprofit agency costs, as provided in Committee pricing
procedures. Recommendations for fair market prices or changes thereto
shall be submitted by the nonprofit agencies to the appropriate central
nonprofit agency. The central nonprofit agency shall analyze the data
and submit a recommended fair market price to the Committee accompanied
by the information required by the Committee's pricing procedures to
support the recommended price.
[59 FR 59342, Nov. 16, 1994]
Sec. 51-2.8 Procurement list.
(a) The Committee maintains a Procurement List which includes the
commodities and services which shall be procured by Government
departments and agencies under the JWOD Act from the nonprofit
agency(ies) designated by the Committee. Copies of the Procurement List,
together with information on procurement requirements and procedures,
are available to contracting activities upon request.
(b) For commodities, including military resale commodities, the
Procurement List identifies the name and national stock number or item
designation for each commodity, and where appropriate, any limitation on
the portion of the commodity which must be procured under the JWOD Act.
(c) For services, the Procurement List identifies the type of
service to be furnished, the Government department or agency responsible
for procuring the service, and, where appropriate, the activity or item
to be serviced.
(d) Additions to and deletions from the Procurement List are
published in the Federal Register as they are approved by the Committee.
Sec. 51-2.9 Oral presentations by interested persons at Committee meetings.
(a) Upon written request from an interested person, that person may,
at the discretion of the Committee Chair, be permitted to appear before
the Committee to present views orally. Generally, only those persons who
have raised significant issues which, if valid, could influence the
Committee's decision in the matter under consideration will be permitted
to appear.
(b) When the Chair has approved the appearance before the Committee
of an interested person who has made a written request:
(1) The name of the spokesperson and the names of any other persons
planning to appear shall be provided to the Committee staff by telephone
at least three working days before the meeting.
(2) In the absence of prior authorization by the Chair, only one
person representing a particular agency or organization will be
permitted to speak.
[[Page 51]]
(3) Oral statements to the Committee and written material provided
in conjunction with the oral statements shall be limited to issues
addressed in written comments which have previously been submitted to
the Committee as the result of notice of proposed rulemaking in the
Federal Register.
(4) Written material to be provided in conjunction with the oral
presentation and an outline of the presentation shall be submitted to
the Committee staff at least three working days before the meeting.
(c) The Committee may also invite other interested persons to make
oral presentations at Committee meetings when it determines that these
persons can provide information which will assist the Committee in
making a decision on a proposed addition to the Procurement List. Terms
of appearance of such persons shall be determined by the Chair.
PART 51-3--CENTRAL NONPROFIT AGENCIES--Table of Contents
Sec.
51-3.1 General.
51-3.2 Responsibilities under the JWOD Program.
51-3.3 Assignment of commodity or service.
51-3.4 Distribution of orders.
51-3.5 Fees.
51-3.6 Reports to central nonprofit agencies.
Authority: 41 U.S.C. 46-48c.
Source: 56 FR 48979, Sept. 26, l991, unless otherwise noted.
Sec. 51-3.1 General.
Under the provisions of section 2(c) of the JWOD Act, the following
are currently designated central nonprofit agencies:
(a) To represent nonprofit agencies for the blind: National
Industries for the Blind.
(b) To represent nonprofit agencies employing persons with other
severe disabilities: NISH.
Sec. 51-3.2 Responsibilities under the JWOD Program.
Each central nonprofit agency shall:
(a) Represent its participating nonprofit agencies in dealing with
the Committee under the JWOD Act.
(b) Evaluate the qualifications and capabilities of its nonprofit
agencies and provide the Committee with pertinent data concerning its
nonprofit agencies, their status as qualified nonprofit agencies, their
manufacturing or service capabilities, and other information concerning
them required by the Committee.
(c) Obtain from Federal contracting activities such procurement
information as is required by the Committee to:
(1) Determine the suitability of a commodity or service being
recommended to the Committee for addition to the Procurement List; or
(2) Establish an initial fair market price for a commodity or
service or make changes in the fair market price.
(d) Recommend to the Committee, with the supporting information
required by Committee procedures, suitable commodities or services for
procurement from its nonprofit agencies.
(e) Recommend to the Committee, with the supporting information
required by Committee procedures, initial fair market prices for
commodities or services proposed for addition to the Procurement List.
(f) Distribute within the policy guidelines of the Committee (by
direct allocation, subcontract, or any other means) orders from
Government activities among its nonprofit agencies.
(g) Maintain the necessary records and data on its nonprofit
agencies to enable it to allocate orders equitably.
(h) Oversee and assist its nonprofit agencies to insure contract
compliance in furnishing a commodity or a service.
(i) As market conditions change, recommend price changes with
appropriate justification for assigned commodities or services on the
Procurement List.
(j) Monitor and inspect the activities of its nonprofit agencies to
ensure compliance with the JWOD Act and appropriate regulations.
(k) When authorized by the Committee, enter into contracts with
Federal contracting activities for the furnishing of commodities or
services provided by its nonprofit agencies.
[[Page 52]]
(l) At the time designated by the Committee, submit a completed,
original copy of the appropriate Initial Certification (Committee Form
401 or 402) for the nonprofit agency concerned. This requirement does
not apply to a nonprofit agency that is already authorized to furnish a
commodity or service under the JWOD Act.
(m) Review and forward to the Committee by December 15 of each year
a completed, original copy of the appropriate Annual Certification
(Committee Form 403 or 404) for each of its participating nonprofit
agencies covering the fiscal year ending the preceding September 30.
(n) Perform other JWOD administrative functions, including
activities to increase Government and public awareness of the JWOD Act
subject to the oversight of the Committee.
[56 FR 48979, Sept. 26, l991, as amended at 59 FR 59342, Nov. 16, 1994;
62 FR 32237, June 13, 1997]
Sec. 51-3.3 Assignment of commodity or service.
(a) The central nonprofit agencies shall determine by mutual
agreement the assignment to one of them of a commodity or service for
the purpose of evaluating its potential for possible future addition to
the Procurement List, except that the Committee shall initially assign a
commodity to National Industries for the Blind when NISH has expressed
an interest in the commodity and National Industries for the Blind has
exercised the blind priority.
(b) NISH shall provide National Industries for the Blind with
procurement information necessary for a decision to exercise or waive
the blind priority when it requests a decision. National Industries for
the Blind shall normally notify NISH of its decision within 30 days, but
not later than 60 days after receipt of the procurement information,
unless the two central nonprofit agencies agree to an extension of time
for the decision. Disagreements on extensions shall be referred to the
Committee for resolution.
(c) If National Industries for the Blind exercises the blind
priority for a commodity, it shall immediately notify the Committee and
NISH and shall submit to the Committee a proposal to add the commodity
to the Procurement List within nine months of the notification, unless
the Committee extends the assignment period because of delays beyond the
control of National Industries for the Blind. Upon expiration of the
assignment period, the Committee shall reassign the commodity to NISH.
(d) The central nonprofit agency assigned a commodity shall obtain a
decision from Federal Prison Industries on the exercise or waiver of its
priority and shall submit the procurement information required by
Federal Prison Industries when it requests the decision. Federal Prison
Industries shall normally notify the central nonprofit agency of its
decision within 30 days, but not later than 60 days after receipt of the
procurement information, unless it agrees with the central nonprofit
agency on an extension of time for the decision. The central nonprofit
agency shall refer a disagreement over an extension to the Committee for
resolution with Federal Prison Industries.
(e) The central nonprofit agency shall provide the Committee the
decision of Federal Prison Industries on the waiver or exercise of its
priority when it requests the addition of the commodity to the
Procurement List. NISH shall also provide the decision of National
Industries for the Blind waiving its priority.
[59 FR 59342, Nov. 16, 1994]
Sec. 51-3.4 Distribution of orders.
Central nonprofit agencies shall distribute orders from the
Government only to nonprofit agencies which the Committee has approved
to furnish the specific commodity or service. When the Committee has
approved two or more nonprofit agencies to furnish a specific commodity
or service, the central nonprofit agency shall distribute orders among
those nonprofit agencies in a fair and equitable manner.
[56 FR 48979, Sept. 26, l991; 56 FR 64002, Dec. 6, 1991]
Sec. 51-3.5 Fees.
A central nonprofit agency may charge fees to nonprofit agencies for
facilitating their participation in the
[[Page 53]]
JWOD Program. Fees shall be calculated based on nonprofit agency sales
to the Government under the JWOD Program. Fees shall not exceed the fee
limit approved by the Committee.
Sec. 51-3.6 Reports to central nonprofit agencies.
Any information, other than that contained in the Annual
Certification required by Sec. 51-4.3(a) of this chapter, which a
central nonprofit agency requires its nonprofit agencies to submit on an
annual basis, shall be requested separately from the Annual
Certification. If the information is being sought in response to a
request by the Committee, nonprofit agencies shall be advised of that
fact and the central nonprofit agency shall, prior to distribution,
provide to the Committee a copy of each form which it plans to use to
obtain such information from its nonprofit agencies.
PART 51-4--NONPROFIT AGENCIES--Table of Contents
Sec.
51-4.1 General.
51-4.2 Initial qualification.
51-4.3 Maintaining qualification.
51-4.4 Subcontracting.
51-4.5 Violations by nonprofit agencies.
Authority: 41 U.S.C. 46-48c.
Source: 56 FR 48980, Sept. 26, l991, unless otherwise noted.
Sec. 51-4.1 General.
To participate in the JWOD Program, a nonprofit agency shall be
represented by the central nonprofit agency assigned by the Committee on
the basis of the nonprofit agency's articles of incorporation and
bylaws.
Sec. 51-4.2 Initial qualification.
(a) To qualify for participation in the JWOD Program:
(1) A privately incorporated nonprofit agency shall submit to the
Committee through its central nonprofit agency the following documents,
transmitted by a letter signed by an officer of the corporation or chief
executive:
(i) A legible copy (preferably a photocopy) of the articles of
incorporation showing the date of filing and the signature of an
appropriate State official.
(ii) A copy of the bylaws certified by an officer of the
corporation.
(iii) If the articles of incorporation or bylaws do not include a
statement to the effect that no part of the net income of the nonprofit
agency may inure to the benefit of any shareholder or other individual,
one of the following shall be submitted:
(A) A certified true copy of the State statute under which the
nonprofit agency was incorporated which includes wording to the effect
that no part of the net income of the nonprofit agency may inure to the
benefit of any shareholder or other individual.
(B) A copy of a resolution approved by the governing body of the
corporation, certified by an officer of the corporation, to the effect
that no part of the net income of the nonprofit agency may inure to the
benefit of any shareholder or other individual.
(2) A State-owned or State-operated nonprofit agency, or a nonprofit
agency established or authorized by a State statute other than the State
corporation laws and not privately incorporated, shall submit to the
Committee through its central nonprofit agency the following documents,
transmitted by a letter signed by an officer of the wholly-owned State
corporation or an official of the agency that directs the operations of
the nonprofit agency, as applicable:
(i) A certified true copy of the State statute establishing or
authorizing the establishment of nonprofit agency(ies) for persons who
are blind or have other severe disabilities.
(ii) In the case of a wholly-owned State corporation, a certified
true copy of the corporation bylaws; and, in the case of a State or
local government agency, a certified true copy of implementing
regulations, operating procedures, notice of establishment of the
nonprofit agency, or other similar documents.
(b) The Committee shall review the documents submitted and, if they
are acceptable, notify the nonprofit agency by letter, with a copy to
its central nonprofit agency, that the Committee has verified its
nonprofit status under the JWOD Act.
[[Page 54]]
(c) A nonprofit agency shall submit two completed copies of the
appropriate Initial Certification (Committee Form 401 or 402) to its
central nonprofit agency at the time designated by the Committee. This
requirement does not apply if a nonprofit agency is already authorized
to furnish a commodity or service under the JWOD Act.
[56 FR 48980, Sept. 26, l991, as amended at 59 FR 59342, Nov. 16, 1994]
Sec. 51-4.3 Maintaining qualification.
(a) To maintain its qualification under the JWOD Act, each nonprofit
agency authorized to furnish a commodity or a service shall continue to
comply with the requirements of a ``nonprofit agency for other severely
handicapped'' or a ``nonprofit agency for the blind'' as defined in
Sec. 51-1.3 of this chapter. In addition, each such nonprofit agency
must submit to its central nonprofit agency by November 15 of each year,
two completed copies of the appropriate Annual Certification covering
the fiscal year ending the preceding September 30.
(b) In addition to paragraph (a) of this section, each nonprofit
agency participating in the JWOD Program shall:
(1) Furnish commodities or services in strict accordance with
Government orders.
(2) Comply with the applicable compensation, employment, and
occupational health and safety standards prescribed by the Secretary of
Labor, including procedures to encourage filling of vacancies within the
nonprofit agency by promotion of qualified employees who are blind or
have other severe disabilities.
(3) Comply with directives or requests issued by the Committee in
furtherance of the objectives of the JWOD Act or its implementing
regulations.
(4) Make its records available for inspection at any reasonable time
to representatives of the Committee or the central nonprofit agency
representing the nonprofit agency.
(5) Maintain records of direct labor hours performed in the
nonprofit agency by each worker.
(6) Maintain a file for each blind individual performing direct
labor which contains a written report reflecting visual acuity and field
of vision of each eye, with best correction, signed by a person licensed
to make such an evaluation, or a certification of blindness by a State
or local governmental entity.
(7) Maintain in the file for each blind individual performing direct
labor annual reviews of ability to engage in normal competitive
employment. These reviews must be signed by an individual qualified by
training and/or experience to make this determination.
(8) Maintain an ongoing placement program operated by or for the
nonprofit agency to include liaison with appropriate community services
such as the State employment service, employer groups and others. Those
individuals determined capable and desirous of normal competitive
employment shall be assisted in obtaining such employment.
(9) Upon receipt of payment by the Government for commodities or
services furnished under the JWOD Program, pay to the central nonprofit
agency a fee which meets the requirements of Sec. 51-3.5 of this
chapter.
(c) Each nonprofit agency employing persons with severe disabilities
participating in the JWOD Program shall, in addition to the requirements
of paragraphs (a) and (b) of this section, maintain in each individual
with a severe disability's file:
(1) A written report signed by a licensed physician, psychiatrist,
or qualified psychologist, reflecting the nature and extent of the
disability or disabilities that cause such person to qualify as a person
with a severe disability, or a certification of the disability or
disabilities by a State or local governmental entity.
(2) Reports which state whether that individual is capable of
engaging in normal competitive employment. These reports shall be signed
by a person or persons qualified by training and experience to evaluate
the work potential, interests, aptitudes, and abilities of persons with
disabilities and shall normally consist of preadmission evaluations and
reevaluations prepared at least annually. The file on individuals who
have been in the nonprofit agency for less than two years shall contain
the preadmission
[[Page 55]]
report and, where appropriate, the next annual reevaluation. The file on
individuals who have been in the nonprofit agency for two or more years
shall contain, as a minimum, the reports of the two most recent annual
reevaluations.
(d) The information collection requirements of Sec. 51-4.2 and
Sec. 51-4.3 and the recordkeeping requirements of Sec. 51-4.3 have been
approved by the Office of Management and Budget (OMB) under the
provisions of the Paperwork Reduction Act of 1980 (Public Law 96-511).
The information collection requirements have been assigned the following
OMB control numbers:
------------------------------------------------------------------------
OMB control
Committee form No.
------------------------------------------------------------------------
Committee form 401......................................... 3037-0004
Committee form 402......................................... 3037-0003
Committee form 403......................................... 3037-0001
Committee form 404......................................... 3037-0002
------------------------------------------------------------------------
The recordkeeping requirements have been assigned OMB control number
3037-0005.
[56 FR 48980, Sept. 26, l991; 56 FR 64002, Dec. 6, 1991, as amended at
59 FR 59343, Nov. 16, 1994; 62 FR 32237, June 13, 1997; 62 FR 66529,
Dec. 19, 1997]
Sec. 51-4.4 Subcontracting.
(a) Nonprofit agencies shall seek broad competition in the purchase
of materials and components used in the commodities and services
furnished to the Government under the JWOD Act. Nonprofit agencies shall
inform the Committee, through their central nonprofit agency, before
entering into multiyear contracts for materials or components used in
the commodities and services furnished to the Government under the JWOD
Act.
(b) Each nonprofit agency shall accomplish the maximum amount of
subcontracting with other nonprofit agencies and small business concerns
that the nonprofit agency finds to be consistent both with efficient
performance in furnishing commodities or services under the JWOD Act and
maximizing employment for persons who are blind or have other severe
disabilities.
(c) Nonprofit agencies may subcontract a portion of the process for
producing a commodity or providing a service on the Procurement List
provided that the portion of the process retained by the prime nonprofit
agency generates employment for persons who are blind or have other
severe disabilities. Subcontracting intended to be a routine part of the
production of a commodity or provision of a service shall be identified
to the Committee at the time the commodity or service is proposed for
addition to the Procurement List and any significant changes in the
extent of subcontracting must be approved in advance by the Committee.
(d) A nonprofit agency may not subcontract the entire production
process for all or a portion of an order without the Committee's prior
approval.
[56 FR 48980, Sept. 26, l991, as amended at 62 FR 66529, Dec. 19, 1997]
Sec. 51-4.5 Violations by nonprofit agencies.
(a) Any alleged violations of these regulations by a nonprofit
agency shall be investigated by the appropriate central nonprofit agency
which shall notify the nonprofit agency concerned and afford it an
opportunity to submit a statement of facts and evidence. The central
nonprofit agency shall report its findings to the Committee, together
with its recommendation. In reviewing the case, the Committee may
request the submission of additional evidence or may conduct its own
investigation of the matter. Pending a decision by the Committee, the
central nonprofit agency concerned may be directed by the Committee to
temporarily suspend allocations to the nonprofit agency.
(b) If a nonprofit agency fails to correct its violations of these
regulations, the Committee, after affording the nonprofit agency an
opportunity to address the Committee on the matter, may terminate the
nonprofit agency's eligibility to participate in the JWOD Program.
[56 FR 48979, Sept. 26, l991, as amended at 59 FR 59343, Nov. 16, 1994]
PART 51-5--CONTRACTING REQUIREMENTS--Table of Contents
Sec.
51-5.1 General.
51-5.2 Mandatory source requirement.
51-5.3 Scope of requirement.
51-5.4 Purchase exceptions.
51-5.5 Prices.
[[Page 56]]
51-5.6 Shipping.
51-5.7 Payments.
51-5.8 Violations by entities of the Government.
Authority: 41 U.S.C. 46-48C.
Source: 56 FR 48981, Sept. 26, l991, unless otherwise noted.
Sec. 51-5.1 General.
(a) Contracting activities are encouraged to assist the Committee
and the central nonprofit agencies in identifying suitable commodities
and services to be furnished by nonprofit agencies employing persons who
are blind or have other severe disabilities so that the Committee can
attain its objective of increasing employment and training opportunities
for individuals who are blind or have other severe disabilities. For
items which appear to be suitable to be furnished by nonprofit agencies,
the contracting activity should refer the candidate commodities and
services to the Committee or a central nonprofit agency. If a
contracting activity decides to procure one or more commodities which
are similar to a commodity or commodities on the Procurement List, the
contracting activity should refer the commodities it intends to procure
to the Committee or a central nonprofit agency.
(b) Contracting activities shall provide the Committee and
designated central nonprofit agencies with information needed to enable
the Committee to determine whether a commodity or service is suitable to
be furnished by a nonprofit agency. For commodities, information such as
the latest solicitation and amendments, bid abstracts, procurement
history, estimated annual usage quantities, and anticipated date of next
solicitation issuance and opening may be needed. For services, similar
information including the statement of work and applicable wage
determination may be required. In order to assist in evaluating the
suitability of an Office of Management and Budget Circular No. A-76
conversion, contracting activities should provide a copy of the draft
statement of work and applicable wage determination to the central
nonprofit agency upon its request.
Sec. 51-5.2 Mandatory source requirement.
(a) Nonprofit agencies designated by the Committee are mandatory
sources of supply for all entities of the Government for commodities and
services included on the Procurement List, as provided in Sec. 51-1.2 of
this chapter.
(b) Purchases of commodities on the Procurement List by entities of
the Government shall be made from sources authorized by the Committee.
These sources may include nonprofit agencies, central nonprofit
agencies, Government central supply agencies such as the Defense
Logistics Agency and the General Services Administration, and certain
commercial distributors. Identification of the authorized sources for a
particular commodity may be obtained from the central nonprofit agencies
at the addresses noted in Sec. 51-6.2 of this chapter.
(c) Contracting activities shall require other persons providing
commodities which are on the Procurement List to entities of the
Government by contract to order these commodities from the sources
authorized by the Committee.
(d) Procedures for obtaining military resale commodities are
contained in Sec. 51-6.4 of this chapter.
(e) Contracting activities procuring services which have included
within them services on the Procurement List shall require their
contractors for the larger service requirement to procure the included
Procurement List services from nonprofit agencies designated by the
Committee.
[56 FR 48981, Sept. 26, l991; 56 FR 64002, Dec. 6, 1991, as amended at
59 FR 59343, Nov. 16, 1994; 60 FR 54200, Oct. 20, 1995; 63 FR 16439,
Apr. 3, 1998]
Sec. 51-5.3 Scope of requirement.
(a) When a commodity is included on the Procurement List, the
mandatory source requirement covers the National Stock Number or item
designation listed and commodities that are essentially the same as the
listed item. In some instances, only a portion of the Government
requirement for a National Stock Number or item designation is specified
by the Procurement List. Where geographic areas, quantities, percentages
or specific supply
[[Page 57]]
locations for a commodity are listed, the mandatory provisions of the
JWOD Act apply only to the portion or portions of the commodity
indicated by the Procurement List.
(b) For services, where an agency and location or geographic area
are listed on the Procurement List, only the service for the location or
geographic area listed must be procured from the nonprofit agency,
except as provided in Sec. 51-6.14 of this chapter. Where no location or
geographic area is indicated by the Procurement List, it is mandatory
that the total Government requirement for that service be procured from
a nonprofit agency.
(c) When a commodity or service is added to the Procurement List,
the addition does not affect contracts for the commodity or service
awarded prior to the effective date of the Procurement List addition or
options exercised under those contracts.
[56 FR 48981, Sept. 26, l991; 56 FR 64002, Dec. 6, 1991, as amended at
59 FR 59343, Nov. 16, 1994; 63 FR 16439, Apr. 3, 1998]
Sec. 51-5.4 Purchase exceptions.
(a) A central nonprofit agency will normally grant a purchase
exception for a contracting activity to procure from commercial sources
commodities or services on the Procurement List when both of the
following conditions are met:
(1) The central nonprofit agency or its nonprofit agency(ies) cannot
furnish a commodity or service within the period specified, and
(2) The commodity or service is available from commercial sources in
the quantities needed and significantly sooner than it will be available
from the nonprofit agency(ies).
(b) The central nonprofit agency may grant a purchase exception when
the quantity involved is not sufficient to be furnished economically by
the nonprofit agency(ies).
(c) The Committee may also grant a purchase exception for the
reasons set forth in paragraphs (a) and (b) of this section.
(d) The central nonprofit agency shall obtain the approval of the
Committee before granting a purchase exception when the value of the
procurement exceeds the simplified acquisition threshold set forth in
the Federal Acquisition Streamlining Act of 1994 or any subsequent
amendments thereto.
(e) When the central nonprofit agency grants a purchase exception
under the above conditions, it shall do so promptly and shall specify
the quantities and delivery period covered by the exception.
(f) When a purchase exception is granted under paragraph (a) of this
section:
(1) Contracting activities shall initiate purchase actions within 15
days following the date of the purchase exception. The deadline may be
extended by the central nonprofit agency with, in cases of procurements
exceeding the simplified acquisition threshold, the concurrence of the
Committee.
(2) Contracting activities shall furnish a copy to the solicitation
to the appropriate central nonprofit agency at the time it is issued,
and a copy of the annotated bid abstract upon awarding of the commercial
contract.
(g) Any decision by a central nonprofit agency regarding a purchase
exception may be appealed to the Committee by the contracting activity.
[56 FR 48981, Sept. 26, l991; 56 FR 64002, Dec. 6, 1991, as amended at
59 FR 59343, Nov. 16, 1994]
Sec. 51-5.5 Prices.
(a) The prices for items on the Procurement List are fair market
prices established by the Committee.
(b) Prices for commodities include applicable packaging, packing,
and marking. Prices include transportation to point of delivery as
specified in Sec. 51-5.6.
(c) Price changes for commodities and services shall usually apply
to orders received by the nonprofit agency on or after the effective
date of the change. In special cases, after considering the views of the
contracting activity, the Committee may make price changes applicable to
orders received by the nonprofit agency prior to the effective date of
the change.
(d) To assist the Committee in revising the fair market prices for
services on the Procurement List, upon request from the central
nonprofit agency, the contracting activity should take the following
actions:
[[Page 58]]
(1) Submit to the Department of Labor in a timely fashion a request
for wage determination rate.
(2) Provide a copy of the new wage determination rate or the
Department of Labor document stating that the wage determination rate is
unchanged and a completed Standard Form 98, ``Notice of Intention to
Make a Service Contract and Response to Notice,'' to the central
nonprofit agency at least 90 days before the beginning of the new
service period.
(3) Provide to the central nonprofit agency at least 90 days before
the beginning of the new service period a copy of the statement of work
applicable to the new service period.
(e) If a contracting activity desires packing, packaging, or marking
of products other than the standard pack or as provided in the
Procurement List, the difference in cost thereof, if any, shall be added
as a separate item on the purchase order.
[56 FR 48981, Sept. 26, l991; 56 FR 64002, Dec. 6, 1991, as amended at
59 FR 59343, Nov. 16, 1994]
Sec. 51-5.6 Shipping.
(a) Except as provided in paragraph (c) of this section for
commodities other than military resale commodities, delivery is
accomplished when a shipment is placed aboard the vehicle of the initial
carrier. Time of delivery is when the shipment is released to and
accepted by the initial carrier.
(b) Method of transportation to destination shall normally be by
Government bills of lading although the contracting activity may
designate another method of transportation on its order, in accordance
with Committee procedures. Government bills of lading may accompany
orders or be otherwise furnished, but shall be supplied promptly. If the
contracting activity fails to designate a method of transportation or
furnish a Government bill of lading promptly, it shall constitute an
excusable cause for delay in delivery.
(c) The Committee may determine that for certain commodity orders,
delivery is accomplished when the shipment is delivered to the
purchaser's facility (plant, warehouse, store, lot, or other location to
which shipment can be made). Time of delivery for these orders is when
the shipment is released by the carrier and accepted by the purchaser.
Under this method of transportation, the nonprofit agency will normally
ship by commercial bills of lading and will be responsible for any loss
or damage to the goods occurring before receipt of the shipment at the
delivery point specified. The nonprofit agency will prepare and
distribute commercial bills of lading, furnish a delivery schedule and
designate the mode of delivering carrier, and pay all charges to the
specified point of delivery.
[59 FR 59343, Nov. 16, 1994]
Sec. 51-5.7 Payments.
Payments for products or services of persons who are blind or have
other severe disabilities shall be made within 30 days after shipment or
receipt of a proper invoice or voucher.
Sec. 51-5.8 Violations by entities of the Government.
Any alleged violations of the JWOD Act or these regulations by
entities of the Government shall be investigated by the Committee, which
shall notify the entity and afford it an opportunity to submit a
statement.
[56 FR 48981, Sept. 26, l991, as amended at 59 FR 59343, Nov. 16, 1994]
PART 51-6--PROCUREMENT PROCEDURES--Table of Contents
Sec.
51-6.1 Direct order process.
51-6.2 Allocation process.
51-6.3 Long-term procurements.
51-6.4 Military resale commodities.
51-6.5 Adjustment and cancellation of orders.
51-6.6 Request for waiver of specification requirement.
51-6.7 Orders in excess of nonprofit agency capability.
51-6.8 Deletion of items from the Procurement List.
51-6.9 Correspondence and inquiries.
51-6.10 Quality of merchandise.
51-6.11 Quality complaints.
51-6.12 Specification changes and similar actions.
51-6.13 Replacement and similar commodities.
51-6.14 Replacement services.
51-6.15 Disputes.
[[Page 59]]
Authority: 41 U.S.C. 46-48c.
Source: 56 FR 48983, Sept. 26, l991, unless otherwise noted.
Sec. 51-6.1 Direct order process.
(a) Once a commodity or service is added to the Procurement List,
the central nonprofit agency may authorize the contracting activity to
issue orders directly to a nonprofit agency without requesting an
allocation for each order. This procedure is known as the direct order
process.
(b) In these cases, the central nonprofit agency shall specify the
normal leadtime required for orders transmitted directly to the
nonprofit agencies. This method shall be used whenever possible since it
eliminates double handling and decreases the time required for
processing orders.
(c) An order for commodities or services shall provide leadtime
sufficient for purchase of materials, production or preparation, and
delivery or completion.
(d) The central nonprofit agency shall keep the contracting activity
informed of any changes in leadtime experienced by its nonprofit
agencies in order to keep to a minimum requests for extensions once an
order is placed. Where, due to unusual conditions, an order does not
provide sufficient leadtime, the central nonprofit agency or the
individual nonprofit agency may request an extension of delivery or
completion date which should be granted, if feasible. If extension of
delivery or completion date is not feasible, the contracting activity
shall:
(1) Notify the central nonprofit agency and the individual nonprofit
agency(ies) as appropriate.
(2) Request the central nonprofit agency to reallocate or to issue a
purchase exception authorizing procurement from commercial sources as
provided in Sec. 51-5.4 of this chapter.
(e) The contracting activity shall promptly provide to the central
nonprofit agency concerned a copy of all orders issued to nonprofit
agencies.
(f) The written direct order authorization remains valid until it is
revoked by the central nonprofit agency.
Sec. 51-6.2 Allocation process.
(a) In those cases where a direct order authorization has not been
issued as described in Sec. 51-6.1, the contracting activity shall
submit written requests for allocation to the appropriate central
nonprofit agency indicated by the Procurement List at the address listed
below:
------------------------------------------------------------------------
Agency Agency symbol
------------------------------------------------------------------------
National Industries for the Blind, 1901 North NIB
Beauregard Street, Suite 200, Alexandria,
Virginia 22311-1727.
NISH, 2235 Cedar Lane, Vienna, Virginia 22182- NISH
5200.
------------------------------------------------------------------------
(b) Requests for allocations shall contain, as a minimum:
(1) For commodities. Name, stock number, latest specification,
quantity, unit price, and place and time of delivery.
(2) For services. Type and location of service required, latest
specification, work to be performed, estimated volume, and time for
completion.
(c) Contracting activities shall request allocations in sufficient
time for the central nonprofit agency to reply, for the order(s) to be
placed, and for the nonprofit agencies to furnish the commodity or
service (see paragraph (i) of this section).
(d) When a commodity on the Procurement List also appears on the
Federal Prison Industries' ``Schedule of Products,'' the contracting
activity shall obtain clearance from the Federal Prison Industries prior
to requesting an allocation or placing an order directly to the
nonprofit agency(ies).
(e) The central nonprofit agency shall make allocations to the
appropriate nonprofit agency(ies) upon receipt of a request from the
contracting activity and instruct that the orders be forwarded to the
central nonprofit agency or direct to the nonprofit agency(ies) with a
copy provided promptly to the central nonprofit agency.
(f) Central nonprofit agencies shall reply promptly to requests for
allocation. When a request for allocation provides a delivery schedule
(based on established lead times and time required for processing the
allocation request) which cannot be met, the central nonprofit agency
shall request a revision,
[[Page 60]]
which the contracting activity shall grant, if feasible, or the central
nonprofit agency shall issue a purchase exception authorizing
procurement from commercial sources as provided in Sec. 51-5.4 of this
chapter.
(g) An allocation is not an obligation to supply a commodity or
service, or an obligation for the contracting activity to issue an
order. Nonprofit agencies are not authorized to commence production
until receipt of an order.
(h) Upon receipt of an allocation, the contracting activity shall
promptly submit an order to the appropriate central nonprofit agency or
designated nonprofit agency(ies). Where this cannot be done promptly,
the contracting activity shall advise the central nonprofit agency and
the nonprofit agency(ies) immediately.
(i) An order for commodities or services shall provide leadtime
sufficient for purchase of materials, production or preparation, and
delivery or completion.
(j) The Central nonprofit agency shall keep the contracting activity
informed of any changes in leadtime experienced by its nonprofit
agency(ies) in order to keep to a minimum requests for extensions once
an order is placed. Where, due to unusual conditions, an order does not
provide sufficient leadtime, the central nonprofit agency or nonprofit
agency may request an extension of delivery or completion date which
should be granted, if feasible. If extension of delivery or completion
date is not feasible, the contracting activity shall:
(1) Notify the central nonprofit agency and nonprofit agency(ies) as
appropriate.
(2) Request the central nonprofit agency to reallocate or to issue a
purchase exception authorizing procurement from commercial sources as
provided in Sec. 51-5.4 of this chapter.
(k) In those instances where the central nonprofit agency is the
prime contractor rather than the nonprofit agency, the central nonprofit
agency will designate the nonprofit agency(ies) authorized by the
Committee to furnish definite quantities of commodities or specific
services upon receipt of an order from the contracting activity.
[56 FR 48983, Sept. 26, l991, as amended at 59 FR 59343, Nov. 16, 1994]
Sec. 51-6.3 Long-term procurements.
(a) Contracting activities are encouraged to investigate long-term
ordering agreements for commodities listed on the Procurement List to
level off demand, thereby helping ensure stability of employment and
development of job skills for persons who are blind or have other severe
disabilities.
(b) Contracting activities are encouraged to use the longest
contract term available by law to their agencies for contracts for
commodities and services under the JWOD Program, in order to minimize
the time and expense devoted to formation and renewal of these
contracts.
[56 FR 48983, Sept. 26, 1991, as amended at 62 FR 32237, June 13, 1997]
Sec. 51-6.4 Military resale commodities.
(a) Purchase procedures for ordering military resale commodities are
available from the central nonprofit agencies. Authorized resale outlets
(military commissary stores, Armed Forces exchanges and like activities
of other Government departments and agencies) shall request the central
nonprofit agency responsible for the military resale commodity being
ordered to designate the nonprofit agency or its agent to which the
outlets shall forward orders.
(b) Authorized resale outlets shall stock military resale
commodities in as broad a range as practicable. Authorized resale
outlets may stock commercial items comparable to the military resale
commodities they stock, except that military commissary stores shall
stock military resale commodities in the 800-, 900-, and 1000- series
exclusively, unless an exception has been granted on an individual store
basis for the stocking of comparable commercial items for which there is
a significant customer demand.
(c) The Defense Commissary Agency shall, after consultation with the
Committee:
[[Page 61]]
(1) Establish mandatory lists of military resale commodities to be
stocked in commissary stores.
(2) Require the stocking in commissary stores of military resale
commodities in the 400-, 500-, 800-, 900-, and 1000- series in as broad
a range as is practicable.
(3) Issue guidance requiring commissary store personnel to maximize
sales potential of military resale commodities.
(4) Establish policies and procedures which reserve to its agency
headquarters the authority to grant exceptions to the exclusive stocking
of 800-, 900-, and 1000- series military resale commod-ities.
(d) The Defense Commissary Agency shall provide the Committee a copy
of each directive which relates to the stocking of military resale
commodities in commissary stores, including exceptions authorizing the
stocking of commercial items in competition with 800-, 900-, and 1000-
series military resale commodities.
(e) The prices of military resale commodities include delivery to
destination or, in the case of destinations overseas, to designated
depots at ports of embarkation. Zone pricing is used for delivery to
Alaska and Hawaii.
[56 FR 48983, Sept. 26, l991, as amended at 59 FR 59343, Nov. 16, 1994;
62 FR 32237, June 13, 1997]
Sec. 51-6.5 Adjustment and cancellation of orders.
When the central nonprofit agency or an individual nonprofit agency
fails to comply with the terms of a Government order, the contracting
activity shall make every effort to negotiate an adjustment before
taking action to cancel the order. When a Government order is canceled
for failure to comply with its terms, the central nonprofit agency shall
be notified, and, if practicable, requested to reallocate the order. The
central nonprofit agency shall notify the Committee of any cancellation
of an order and the reasons for that cancellation.
Sec. 51-6.6 Request for waiver of specification requirement.
(a) Nonprofit agencies and central nonprofit agencies are encouraged
to recommend changes to specification requirements or request waivers
where there are opportunities to provide equal or improved products at a
lower cost to the Government.
(b) A nonprofit agency shall not request a waiver of a specification
requirement except when it is not possible to obtain the material
meeting the specification or when other requirements contained in the
specification cannot be met.
(c) Requests for waiver of specification shall be transmitted by the
nonprofit agency to its central nonprofit agency.
(d) The central nonprofit agency shall review the request and the
specification to determine if the request is valid and shall submit to
the contracting activity only those requests which it has determined are
necessary to enable the nonprofit agency to furnish the item.
(e) The central nonprofit agency request for waiver shall be
transmitted in writing to the contracting activity. In addition, a copy
of the request shall be transmitted to the Committee, annotated to
include a statement concerning the impact on the cost of producing the
item if the waiver is approved.
Sec. 51-6.7 Orders in excess of nonprofit agency capability.
(a) Nonprofit agencies are expected to furnish commodities on the
Procurement List within the time frames specified by the Government. The
nonprofit agency must have the necessary production facilities to meet
normal fluctuations in demand.
(b) Nonprofit agencies shall take those actions necessary to ensure
that they can ship commodities within the time frames specified by the
Government. In instances where the nonprofit agency determines that it
cannot ship the commodity in the quantities specified by the required
shipping date, it shall notify the central nonprofit agency and the
contracting activity. The central nonprofit agency shall request a
revision of the shipping schedule which the contracting activity should
grant, if feasible, or the central nonprofit agency shall issue a
purchase exception authorizing procurement from
[[Page 62]]
commercial sources as provided in Sec. 51-5.4 of this chapter.
Sec. 51-6.8 Deletion of items from the Procurement List.
(a) When a central nonprofit agency decides to request that the
Committee delete a commodity or service from the Procurement List, it
shall notify the Committee staff immediately. Before reaching a decision
to request a deletion of an item from the Procurement List, the central
nonprofit agency shall determine that none of its nonprofit agencies is
capable and desirous of furnishing the commodity or service involved.
(b) Except in cases where the Government is no longer procuring the
item in question, the Committee shall, prior to deleting an item from
the Procurement List, determine that none of the nonprofit agencies of
the other central nonprofit agency is desirous and capable of furnishing
the commodity or service involved.
(c) Nonprofit agencies will normally be required to complete
production of any orders for commodities on hand regardless of the
decision to delete the item. Nonprofit agencies shall obtain concurrence
of the contracting activity and the Committee prior to returning a
purchase order to the contracting activity.
(d) For services, a nonprofit agency shall notify the contracting
activity of its intent to discontinue performance of the service 90 days
in advance of the termination date to enable the contracting activity to
assure continuity of the service after the nonprofit agency's
discontinuance.
(e) The Committee may delete an item from the Procurement List
without a request from a central nonprofit agency if the Committee
determines that none of the nonprofit agencies participating in the JWOD
Program are capable and desirous of furnishing the commodity or service
to the Government, or if the Committee decides that the commodity or
service is no longer suitable for procurement from nonprofit agencies
employing people who are blind or have other severe disabilities. In
considering such an action, the Committee will consult with the
appropriate central nonprofit agency, the nonprofit agency or agencies
involved, and the contracting activity.
[56 FR 48983, Sept. 26, l991; 56 FR 64002, Dec. 6, 1991, as amended at
59 FR 59344, Nov. 16, 1994]
Sec. 51-6.9 Correspondence and inquiries.
Routine contracting activity correspondence or inquiries concerning
deliveries of commodities being shipped from or performance of services
by nonprofit agencies employing persons who are blind or have other
severe disabilities shall be with the nonprofit agency involved. Major
problems shall be referred to the appropriate central nonprofit agency.
In those instances where the problem cannot be resolved by the central
nonprofit agency and the contracting activity involved, the contracting
activity or central nonprofit agency shall notify the Committee of the
problem so that action can be taken by the Committee to resolve it.
Sec. 51-6.10 Quality of merchandise.
(a) Commodities furnished under Government specification by
nonprofit agencies employing persons who are blind or have other severe
disabilities shall be manufactured in strict compliance with such
specifications. Where no specifications exist, commodities furnished
shall be of a quality equal to or higher than similar items available on
the commercial market. Commodities shall be inspected utilizing
nationally recognized test methods and procedures for sampling and
inspection.
(b) Services furnished by nonprofit agencies employing persons who
are blind or have other severe disabilities shall be performed in
accordance with Government specifications and standards. Where no
Government specifications and standards exist, the services shall be
performed in accordance with commercial practices.
Sec. 51-6.11 Quality complaints.
(a) When the quality of a commodity received is not considered
satisfactory by the using activity, the activity shall take the
following actions as appropriate:
[[Page 63]]
(1) For commodities received from Defense Logistics Agency supply
centers, General Services Administration supply distribution facilities,
Department of Veterans Affairs distribution division or other central
stockage depots, or specifically authorized supply source, notify the
supplying agency in writing in accordance with that agency's procedures.
The supplying agency shall, in turn, provide copies of the notice to the
nonprofit agency involved and its central nonprofit agency.
(2) For commodities received directly from nonprofit agencies
employing persons who are blind or have other severe disabilities,
address complaints to the nonprofit agency involved with a copy to the
central nonprofit agency with which it is affiliated.
(b) When the quality of a service is not considered satisfactory by
the contracting activity, it shall address complaints to the nonprofit
agency involved with a copy to the central nonprofit agency with which
it is affiliated.
Sec. 51-6.12 Specification changes and similar actions.
(a) Contracting activities shall notify the nonprofit agency or
agencies authorized to furnish a commodity on the Procurement List and
the central nonprofit agency concerned of any changes to the
specification or other description of the commodity.
(b) When a Government entity is changing the specification or
description of a commodity on the Procurement List, including a change
that involves the assignment of a new national stock number or item
designation, the office assigned responsibility for the action shall
obtain the comments of the Committee and the central nonprofit agency
concerned on the proposed change and shall notify the nonprofit agency
and the central nonprofit agency concerned at least 90 days prior to
placing an order for a commodity covered by the new specification or
description.
(c) For services on the Procurement List, the contracting activity
shall notify the nonprofit agency furnishing the service and the central
nonprofit agency concerned at least 90 days prior to the date that any
changes in the statement of work or other conditions of performance will
be required, including assumption of performance of the service by the
contracting activity.
(d) If an emergency makes it impossible for a contracting activity
to give the 90-day notice required by paragraphs (b) and (c) of this
section, the contracting activity shall inform the nonprofit agency and
the central nonprofit agency concerned of the reasons it cannot meet the
90-day notice requirement when it places the order or change notice.
(e) Nonprofit agencies shall recommend changes in specifications,
item descriptions, and statements of work that will improve the
commodity or service being provided, reduce costs, or improve overall
value to the Government. Contracting activities shall respond promptly
to these recommendations and work with the nonprofit agencies to
implement them when appropriate.
[56 FR 48983, Sept. 26, l991, as amended at 59 FR 59344, Nov. 16, 1994;
62 FR 66529, Dec. 19, 1998]
Sec. 51-6.13 Replacement and similar commodities.
(a) When a commodity on the Procurement List is replaced by another
commodity which has not been recently procured, and a nonprofit agency
can furnish the replacement commodity in accordance with the
Government's quality standards and delivery schedules, the replacement
commodity is automatically considered to be on the Procurement List and
shall be procured from the nonprofit agency designated by the Committee
at the fair market price the Committee has set for the replacement
commodity. The commodity being replaced shall continue to be included on
the Procurement List until there is no longer a Government requirement
for that commodity.
(b) If contracting activities desire to procure additional sizes,
colors, or other variations of a commodity after the commodity is added
to the Procurement List, and these similar commodities have not recently
been procured, these commodities are also automatically considered to be
on the Procurement List.
[[Page 64]]
(c) In accordance with Sec. 51-5.3 of this chapter, contracting
activities are not permitted to purchase commercial items that are
essentially the same as commodities on the Procurement List.
[59 FR 59344, Nov. 16, 1994]
Sec. 51-6.14 Replacement services.
If a service is on the Procurement List to meet the needs of a
Government entity at a specific location and the entity moves to another
location, the service at the new location is automatically considered to
be on the Procurement List if a qualified nonprofit agency is available
to provide the service at the new location, unless the service at that
location is already being provided by another contractor. If the service
at the new location is being provided by another contractor, the service
will not be on the Procurement List unless the Committee adds it as
prescribed in Part 51-2 of this chapter. If another Government entity
moves into the old location, the service at that location will remain on
the Procurement List to meet the needs of the new Government entity.
[63 FR 16439, Apr. 3, 1998]
Sec. 51-6.15 Disputes.
Disputes between a nonprofit agency and a contracting activity
arising out of matters covered by parts 51-5 and 51-6 of this chapter
shall be resolved, where possible, by the contracting activity and the
nonprofit agency, with assistance from the appropriate central nonprofit
agency. Disputes which cannot be resolved by these parties shall be
referred to the Committee for resolution.
[62 FR 66529, Dec. 19, 1997. Redesignated at 63 FR 16439, Apr. 3, 1998.]
PART 51-7--PROCEDURES FOR ENVIRONMENTAL ANALYSIS--Table of Contents
Sec.
51-7.1 Purpose and scope.
51-7.2 Early involvement in private, State, and local activities
requiring Federal approval.
51-7.3 Ensuring environmental documents are actually considered in
agency determinations.
51-7.4 Typical classes of action.
51-7.5 Environmental information.
Authority: 42 U.S.C. 4321 et seq.
Source: 56 FR 48986, Sept. 26, l991, unless otherwise noted.
Sec. 51-7.1 Purpose and scope.
(a) Purpose. This part implements the National Environmental Policy
Act of 1969 (NEPA) and provides for the implementation of those
provisions identified in 40 CFR 1507.3(b) of the regulations issued by
the Council on Environmental Quality (CEQ) (40 CFR parts 1500-1508)
published pursuant to NEPA.
(b) Scope. This part applies to all actions of the Committee for
Purchase from Persons who are Blind or Severely Disabled which may
affect environmental quality in the United States.
[56 FR 48986, Sept. 26, 1991, as amended at 59 FR 16777, Apr. 8, 1994]
Sec. 51-7.2 Early involvement in private, State, and local activities requiring Federal approval.
(a) 40 CFR 1501.2(d) requires agencies to provide for early
involvement in actions which, while planned by private applicants or
other non-Federal entities, require some sort of Federal approval.
Pursuant to the JWOD Act (41 U.S.C. 46-48c), the Committee for Purchase
from People who are Blind or Severely Disabled makes the determination
as to which qualified nonprofit agency serving persons who are blind or
have other severe disabilities will furnish designated products and
services to the Government.
(b) To implement the requirements of 40 CFR 1501.2(d) with respect
to these actions, the Committee staff shall consult as required with
other appropriate parties to initiate and coordinate the necessary
environmental analysis. The Executive Director shall determine on the
basis of information submitted by private agencies and other non-Federal
entities or generated by the Committee whether the proposed action is
one that normally does not require an environmental assessment or
environmental impact statement (EIS) as set forth in Sec. 51-7.4, or is
one that requires an environmental assessment as set forth in 40 CFR
1501.4.
(c) To facilitate compliance with these requirements, private
agencies
[[Page 65]]
and other non-Federal entities are expected to:
(1) Contact the Committee staff as early as possible in the planning
process for guidance on the scope and level of environmental information
required to be submitted in support of their request;
(2) Conduct any studies which are deemed necessary and appropriate
by the Committee to determine the impact of the proposed action on the
human environment;
(3) Consult with appropriate Federal, regional, State and local
agencies and other potentially interested parties during preliminary
planning stages to ensure that all environmental factors are identified;
(4) Submit applications for all Federal, regional, State and local
approvals as early as possible in the planning process;
(5) Notify the Committee as early as possible of all other Federal,
regional, State, local and Indian tribe actions required for project
completion so that the Committee may coordinate all Federal
environmental reviews; and
(6) Notify the Committee of all known parties potentially affected
by or interested in the proposed action.
[56 FR 48986, Sept. 26, 1991, as amended at 59 FR 16777, Apr. 8, 1994]
Sec. 51-7.3 Ensuring environmental documents are actually considered in agency determinations.
(a) 40 CFR 1505.1 of the NEPA regulations contains requirements to
ensure adequate consideration of environmental documents in agency
decision-making. To implement these requirements, the Committee staff
shall:
(1) Consider all relevant environmental documents in evaluating
proposals for agency action;
(2) Ensure that all relevant environmental documents, comments and
responses accompany the proposal through the agency review processes;
(3) Consider only those alternatives discussed in the relevant
environmental documents when evaluating proposals for agency action; and
(4) Where an EIS has been prepared, consider the specific
alternative analysis in the EIS when evaluating the proposal which is
the subject of the EIS.
(b) For each of the Committee's actions authorized by the JWOD Act,
the following list identifies the point at which the NEPA process
begins, the point at which it ends, and the key agency official or
office required to consider the relevant environmental documents as a
part of their decision-making:
(1) Action: Request.
(2) Start of NEPA process: Upon receipt of request.
(3) Completion of NEPA process: When the deciding official reviews
the proposal and makes a determination.
(4) Key official or office required to consider environmental
document: When a positive determination is made under Sec. 51-7.2(b),
the applicant in conjunction with the Committee staff will prepare the
necessary papers.
Sec. 51-7.4 Typical classes of action.
(a) 40 CFR 1507.3(b)(2) in conjunction with 40 CFR 1508.4 requires
agencies to establish three typical classes of action for similar
treatment under NEPA. These typical classes of action are set forth
below:
(1) Actions normally requiring EIS: None.
(2) Actions normally requiring assessments but not necessarily EISs:
Requests for actions for which determinations under Sec. 51-7.2(b) are
found to be affirmative.
(3) Actions normally not requiring assessments or EISs: Request for
actions by nonprofit agencies through the central nonprofit agencies to
add a commodity or service to the Committee's Procurement List.
(b) The Committee shall independently determine, by referring to 40
CFR 1508.27, whether an EIS or an environmental assessment is required
where:
(1) A proposal for agency action is not covered by one of the
typical classes of action above; or
(2) For actions which are covered, but where the presence of
extraordinary circumstances indicates that some other level of
environmental review may be appropriate.
[[Page 66]]
Sec. 51-7.5 Environmental information.
Interested parties may contact the Executive Director at (703) 603-
7740 for information regarding the Committee's compliance with NEPA.
[56 FR 48986, Sept. 26, 1991, as amended at 59 FR 16777, Apr. 8, 1994]
PART 51-8--PUBLIC AVAILABILITY OF AGENCY MATERIALS--Table of Contents
Sec.
51-8.1 Purpose.
51-8.2 Scope.
51-8.3 Definitions.
51-8.4 Availability of materials.
51-8.5 Requests for records.
51-8.6 Aggregating requests.
51-8.7 Committee response to requests for records.
51-8.8 Business information.
51-8.9 Records of other agencies.
51-8.10 Appeals.
51-8.11 Extensions of time.
51-8.12 Fee schedule.
51-8.13 Fees charged by category of requester.
51-8.14 Fee waivers and reductions.
51-8.15 Collection of fees and charges.
51-8.16 Preservation of records.
Authority: 5 U.S.C. 552.
Source: 54 FR 15189, Apr. 17, 1989. Redesignated at 56 FR 48983,
Sept. 26, 1991.
Editorial Note: Nomenclature change to part 51-8 appears at 59 FR
16777, Apr. 8, 1994.
Sec. 51-8.1 Purpose.
These regulations implement the provisions of the ``Freedom of
Information Act,'' 5 U.S.C. 552. They establish procedures under which
the public may inspect and obtain copies of material maintained by the
Committee, provide for administrative appeal of initial determinations
to deny requests for material, and prescribe fees to be charged by the
Committee to recover search, review, and duplication costs.
[59 FR 59344, Nov. 16, 1994]
Sec. 51-8.2 Scope.
(a) These regulations shall apply to all final determinations made
by the Committee, including all objections; and to any other Committee
records reasonably described and requested by a person in accordance
with these regulations--except to the extent that such material is
exempt in accordance with paragraph (b) of this section. Where a request
does not reasonably describe the requested information, the requester
will be asked to provide more specific information.
(b) Requests for inspection and copies shall not be granted with
respect to matters that are:
(1) Related to records:
(i) Specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense or
foreign policy, and
(ii) In fact properly classified pursuant to such Executive Order;
(2) Related solely to the internal personnel rules and practices of
the Committee;
(3) Specifically exempted from disclosure by statute;
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Inter-agency or intra-agency memoranda or letters which would
not be available by law to a party other than an agency in litigation
with the Committee;
(6) Personnel, medical files and similar files, the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings,
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication,
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy,
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution, which furnished information on a
confidential basis and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential
source,
[[Page 67]]
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law, or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Contained in or related to examination, operation, or condition
of reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions;
or
(9) Geological and geophysical information and data, including maps
concerning wells.
(c) Whenever a request is made which involves access to records
described in paragraph (b)(7)(i) of this section and:
(1) The investigation or proceeding involves a possible violation of
criminal law; and
(2) There is reason to believe that:
(i) The subject of the investigation or proceeding is not aware of
its pendency, and
(ii) Disclosure of the existence of the records could reasonably be
expected to interfere with enforcement proceedings, then the agency may,
during only such time as that circumstance continues, treat the records
as not subject to the requirements of this section.
(d) Whenever informant records maintained by a criminal law
enforcement agency under an informant's name or personal identifier are
requested by a third party according to the informant's name or personal
identifier, the agency may treat the records as not subject to the
requirements of this section unless the informant's status as an
informant has been officially confirmed.
(e) Whenever a request is made which involves access to records
maintained by the Federal Bureau of Investigation pertaining to foreign
intelligence or counterintelligence, or international terrorism, and the
existence of the records is classified information as provided in
paragraph (b)(1) of this section, the Bureau may, as long as the
existence of the records remains classified information, treat the
records as not subject to the requirements of this section.
Sec. 51-8.3 Definitions.
As used in this part:
(a) The term Act means the Freedom of Information Act (5 U.S.C.
552), as amended.
(b) The term Chairperson means the Chairperson of the Committee for
Purchase From People Who Are Blind or Severely Disabled.
(c) The term Executive Director means the Executive Director of the
Committee for Purchase from People who are Blind or Severely Disabled.
(d) The term exempt materials means those materials described in
Sec. 51-8.2(b).
(e) The term non-exempt materials refers to all materials described
in Sec. 51-8.2(a), except exempt materials included in Sec. 51-8.2(b).
(f) The term duplication refers to the process of making a copy of a
document necessary to respond to a request. Such copies can take the
form of paper copy, audio-visual materials, or machine readable
materials (e.g., magnetic tape or disk), among others.
(g) The term search includes all time spent looking for material
that is responsive to a request, including page-by-page or line-by-line
identification of material within documents.
(h) The term review refers to the process of examining documents
located in response to a request that is for a commercial use to
determine whether any portion of any document located is permitted to be
withheld. It also includes processing any documents for disclosure,
e.g., doing all that is necessary to excise them and otherwise prepare
them for release. Review does not include time spent resolving general
legal or policy issues regarding the application of exemptions.
[54 FR 15189, Apr. 17, 1989. Redesignated at 56 FR 48983, Sept. 26,
1991, and amended at 59 FR 59344, Nov. 16, 1994]
Sec. 51-8.4 Availability of materials.
Material described in 5 U.S.C. 552(a)(2) shall be available for
inspection during normal business hours at the Committee's offices,
Crystal Gateway 3, Suite 310, 1215 Jefferson Davis Highway, Arlington,
Virginia 22202-
[[Page 68]]
4302. An individual who intends to visit the Committee offices to
inspect this material shall make an appointment with the Executive
Director at least one week in advance, except when the Committee has
provided notification to the individual that the material is available
for inspection in the Committee offices, in which case an appointment
must be made at least 24 hours in advance.
[59 FR 59344, Nov. 16, 1994, as amended at 63 FR 16440, Apr. 3, 1998]
Sec. 51-8.5 Requests for records.
(a) Requests to obtain copies of any material maintained by the
Committee must be submitted in writing to the Executive Director at the
Committee's offices, Crystal Gateway 3, Suite 310, 1215 Jefferson Davis
Highway, Arlington, Virginia 22202-4302. The requester may in his or her
petition ask for a fee waiver if there is likely to be a charge for the
requested information. All requests for records shall be deemed to have
been made pursuant to the FOIA, regardless of whether the Act is
specifically mentioned. Failure to submit a request in accordance with
these procedures may delay the processing of the request.
(b) A request must reasonably describe the records to enable agency
personnel to locate them with reasonable effort. Where possible, a
requester should supply specific information regarding dates, titles,
and other identification which will help to identify the records.
(c) If the Committee determines that a request does not reasonably
describe the records, it shall inform the requester of this fact and
extend to the requester an opportunity to clarify the request or to
confer promptly with knowledgeable agency personnel to attempt to
identify the records he or she is seeking. The ``date of receipt'' in
such instances shall be the date of receipt of the amended or clarified
request.
(d) Nothing in this part shall be interpreted to preclude the
Committee from honoring an oral request for information, but, if the
requester is dissatisfied with the response, the Committee official
involved shall advise the requester to submit a written request in
accordance with paragraph (a) of this section. The ``date of receipt''
of such a request shall be the date of receipt of the written request.
For recordkeeping purposes, the Committee in responding to an oral
request for information may ask the requester to confirm the oral
request in writing.
[54 FR 15189, Apr. 17, 1989. Redesignated at 56 FR 48983, Sept. 26,
1991, and amended at 59 FR 59345, Nov. 16, 1994; 63 FR 16440, Apr. 3,
1998]
Sec. 51-8.6 Aggregating requests.
When the Committee reasonably believes that a requester, or a group
of requesters acting in concert, is attempting to break a request down
into a series of requests for the purpose of evading the assessment of
fees, the Committee may aggregate any such requests and charge
accordingly. Elements to be considered in determining whether a belief
would be reasonable include the time period in which the requests have
occurred and the subject matter involved.
Sec. 51-8.7 Committee response to requests for records.
(a) An initial determination whether, and to what extent, to grant
each request for records or a fee waiver shall be made by the Executive
Director within 10 days (excepting Saturdays, Sundays, and legal public
holidays) after receipt of that request. The person making the request
shall be notified as soon as the determination is made.
(b) In making an initial determination whether and to what extent
requested information will be released, the Committee shall first
consider whether the material requested is of a type described in
Sec. 51-8.2(a); if it is, the request shall be granted unless the
material is exempted by Sec. 51-8.2(b). If the material requested is not
a type described in Sec. 51-8.2(a), or is the subject of one or more
exemptions, the request may be denied.
(c) If a determination is made to grant a request, the relevant
material shall be furnished as soon as possible following the
determination to grant the request, and after payment of the fee
specified in Sec. 51-8.12 when required, except that copies of less than
10 pages
[[Page 69]]
of material requested in person ordinarily will be furnished immediately
following the determination to grant the request.
(d) Where portions of the requested material are exempt under
Sec. 51-8.2(b), and are reasonably segregable from the remainder of the
material, those portions shall be excised from the materials disclosed.
(e) If a determination is made to deny a request, or a portion
thereof, the notification shall include a statement of the reasons for
such action, shall set forth the name and position of the person
responsible for the denial, and shall advise the requester of the right,
and the procedures required under Sec. 51-8.10 to appeal the denial to
the Chairperson.
(f) The Committee will require prepayment of fees for search,
review, and reproduction which are likely to exceed $250.00. When the
anticipated total fee exceeds $250.00, the requester will receive notice
to prepay and at the same time will be given an opportunity to modify
his or her request to reduce the fee. The Committee will also inform the
requester that fees for search time will be charged even if the search
proves unsuccessful. The Committee will not start processing a request
until payment is received.
(g) Whenever duplication fees or search fees are anticipated to
exceed $25.00, but not more than $250.00 and the requester has not
indicated, in advance, a willingness to pay fees as high as those
anticipated, the Committee will notify the requester of the amount of
the anticipated fee. Similarly, where an extensive and therefore costly
successful search is anticipated, the Committee will notify requesters
of the anticipated fees. The Committee will not start processing the
request until assurance of payment is received.
(h) Photocopies and directives furnished to the public are
restricted to one copy of each page.
[54 FR 15189, Apr. 17, 1989. Redesignated at 56 FR 48983, Sept. 26,
1991, and amended at 59 FR 59345, Nov. 16, 1994]
Sec. 51-8.8 Business information.
(a) When, in responding to an FOIA request, the Committee cannot
readily determine whether the information obtained from a person is
privileged or confidential business information or when a submitter has
labeled information as proprietary at the time of submission, it shall:
(1) Obtain and consider the views of the submitter of the
information and provide the submitter at least 10 working days to object
to any decision to disclose the information and to provide reasons for
the objection;
(2) Provide business information submitters with notice of any
determination to disclose such records, to which the submitter has
objected to disclosure, 10 working days prior to the disclosure date,
and the reasons for which its disclosure objection is not sustained;
(3) Notify business information submitters promptly of all instances
in which FOIA requesters are bringing suit seeking to compel disclosure
of submitted information.
(b) The submitter, in responding to a request under paragraph (a)(1)
of this section, must explain fully all grounds upon which disclosure is
opposed. For example, if the submitter maintains that disclosure is
likely to cause substantial harm to its competitive position, the
submitter must explain how disclosure would cause such harm.
(c) When a central nonprofit agency has submitted business
information on behalf of a workshop, the workshop shall be considered to
be the ``business information submitter'' for the purposes of this
section.
Sec. 51-8.9 Records of other agencies.
(a) When the Committee receives a request to make available current
records that are the primary responsibility of another agency, the
Committee will refer the request to the agency concerned for appropriate
action.
(b) The Committee will notify the requestor of the referral in
paragraph (a) of this section and include the name and address of the
office to which the request was referred.
Sec. 51-8.10 Appeals.
(a) An appeal to the Chairperson of any denial, in whole or in part,
of a request for access to and copies of material may be made by
submission of a
[[Page 70]]
written request for reconsideration. Such requests shall state the
specific reasons for reconsideration that address directly the grounds
upon which the denial was based. Requests must be addressed to the
Chairperson at the Committee offices and must be received within 30
calendar days of the requester's receipt of the Committee's initial
denial.
(b) The Chairperson shall make a determination with respect to any
appeal within 20 days (excepting Saturdays, Sundays, and legal public
holidays) after receipt of the request for reconsideration. The person
making such a request shall immediately be notified by mail of the
determination.
(c) If the initial denial is reversed by the Chairperson, any
material with which the reversal is concerned shall be made available in
accordance with Sec. 51-8.7(b).
(d) If the denial is upheld, in whole or in part, the Chairperson
shall include in the notification a statement of the requester's right
of judicial review under 5 U.S.C. 552(a)(4), and the name and position
of the person responsible for the denial.
[54 FR 15189, Apr. 17, 1989. Redesignated at 56 FR 48983, Sept. 26,
1991, and amended at 59 FR 59345, Nov. 16, 1994]
Sec. 51-8.11 Extensions of time.
(a) Whenever unusual circumstances exist, such as those set forth in
paragraph (b) of this section, the times within which determinations
must be made by the Executive Director on requests for access (10
working days), and by the Chairperson on requests for reconsideration
(20 working days), may be extended by written notice to the requester
for a time not to exceed an aggregate of 30 working days. The notice
shall set forth the reasons for such extension, and the date on which a
determination is expected to be made. Extensions of time shall be
utilized only to the extent reasonably necessary to the proper
processing of the particular request.
(b) As used in this section, ``unusual circumstances'' may mean:
(1) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are the subject
of a single request;
(2) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request; or
(3) The need to obtain and consider the views of a business
information submitter under Sec. 51-8.8.
[54 FR 15189, Apr. 17, 1989. Redesignated at 56 FR 48983, Sept. 26,
1991, and amended at 59 FR 59345, Nov. 16, 1994]
Sec. 51-8.12 Fee schedule.
(a) This schedule sets forth fees to be charged for processing
requests for records under the FOIA. No higher fees or charges in
addition to those provided for in this schedule may be charged a party
requesting records under FOIA.
(b) Subject to the criteria set forth in Sec. 51-8.13, fees may be
assessed under FOIA on all requests involving document search,
duplication, and review. Fees may also be charged in situations
involving special service to requests, such as certifying that records
requested are true copies, or sending records by special methods such as
express mail, etc.
(c) Instances in which fees may not be charged are as follows:
(1) No charge shall be made for the first 100 pages of duplicated
information (8\1/2\"x14" or smaller-size paper), or the first two hours
of manual search time, or the first two minutes of computer search time,
except on requests seeking documents for a commercial use, as specified
in Sec. 51-8.13;
(2) Also, no charge shall be made--even to commercial use
requesters--if the cost of collecting a fee would be equal to or greater
than the fee itself;
(3) In addition, fees shall not be charged for time spent by an
agency employee in resolving legal or policy issues, or in monitoring a
requester's inspection of agency records;
(4) Documents shall also be furnished without charge when members of
the public provide their own copying equipment, in which case no copying
fee will be charged (although search and review fees may still be
assessed).
(d) Fees for records and related services are as follows:
[[Page 71]]
(1) The fee for photocopies of pages 8\1/2\"x14" or smaller shall be
$0.20 for each page;
(2) The fee for photocopies larger than 8\1/2\"x14" shall be $0.50
per linear foot of the longest side of the copy;
(3) The fee for other forms of duplicated information, such as
microfilm, audio-visual materials, or machine-readable documentation
(i.e., magnetic tape or disk) shall be the actual direct cost of
producing the document(s);
(4) Manual searches shall be charged at the salary rate of the
employee conducting the search, plus 16 percent of the employee's basic
pay.
(e) Computer searches and services shall be charged at the rate of
$22.00 per minute. The $22.00-per-minute rate includes the cost of
operating the central processing unit (CPU), and the computer operator's
salary. When the services of a computer programmer or a computer program
analyst are required in connection with an FOIA request, the fee for
those services shall be $16.00 and $20.00 per hour, respectively.
(f) Charges for unsuccessful searches, or searches which fail to
locate records or which locate records which are exempt from disclosure,
shall be assessed at the same fee rate as searches which result in
disclosure of records.
(g) The fee for providing review services shall be the hourly salary
rate (i.e., basic pay plus 16 percent) of the employee conducting the
review to determine whether any information is exempt from mandatory
disclosure.
Sec. 51-8.13 Fees charged by category of requester.
(a) Under the FOIA, as amended, there are four categories of FOIA
requesters: Commercial use requesters; educational and non-commercial
scientific institutions; representatives of the news media; and all
other requesters. The Act prescribes specific levels of fees for each
category.
(b) Commercial use requesters. For commercial use requesters, the
Committee shall assess charges which recover the full direct costs of
searching for, reviewing for release, and duplicating the records
sought. Commercial use requesters are not entitled to two hours of free
search time nor 100 free pages of reproduction of documents referenced
in Sec. 51-8.12(c)(1). The Committee may charge for the cost of
searching for and reviewing records for commercial use requesters even
if there is ultimately no disclosure of records.
(1) A commercial use requester is defined as one who seeks
information for a use or purpose that furthers the commercial, trade, or
profit interests of the requester or the person on whose behalf the
request is made.
(2) In determining whether a requester properly belongs in this
category the Committee must determine whether the requester will put the
documents to a commercial use. Where the Committee has reasonable cause
to doubt the use to which a requester will put the records sought, or
where that use is not clear from the request itself, the Committee may
seek additional clarification from the requester.
(c) Educational and non-commercial scientific institution
requesters. Fees for this category of requesters shall be limited to the
cost of providing duplication service alone, minus the charge for the
first 100 reproduced pages. No charge shall be made for search or review
services. To qualify for this category, requesters must show that the
request is being made as authorized by and under the auspices of an
eligible institution and that the records are not sought for a
commercial use, but are sought in furtherance of scholarly research (if
the request is from a non-commercial scientific institution).
(1) The term ``educational institution'' refers to a preschool, a
public or private elementary or secondary school, an institution of
graduate higher education, an institution of undergraduate higher
education, an institution of professional education, and an institution
of vocational education, which operates a program or programs of
scholarly research.
(2) The term ``non-commercial scientific institution'' refers to an
institution that is not operated on a ``commercial'' basis, and which is
operated solely for the purpose of conducting scientific research the
results of which are not intended to promote any particular product or
industry.
[[Page 72]]
(d) Requesters who are representatives of the news media--Fees for
this category of requesters shall also be limited to the cost of
providing duplication service alone, minus the charge for the first 100
reproduced pages. No charge shall be made for providing search for
review services. Requests in this category must not be made for a
commercial use.
(1) The term ``representative of the news media'' refers to any
person actively gathering news for an entity that is organized and
operated to publish or broadcast news to the public.
(2) The term ``news'' means information that is about current events
or that would be of current interest to the public.
(3) Examples of news media entities include television or radio
stations broadcasting to the public at large, and publishers of
periodicals which disseminate news and who make their products available
for purchase or subscription by the general public.
(4) ``Freelance'' journalists may be regarded as working for a news
organization if they can demonstrate a solid basis for expecting
publication through that organization, even though not actually employed
by it.
(e) All other requesters. Fees for requesters who do not fit into
any of the above categories shall be assessed for the full reasonable
direct cost of searching for and duplicating documents that are
responsive to a request, except that the first 100 pages of reproduction
and the first two hours of search time shall be furnished without
charge.
Sec. 51-8.14 Fee waivers and reductions.
The Committee will waive or reduce fees on requests for information
if disclosure of the information is deemed to be in the public interest
because it is likely to contribute significantly to public understanding
of the operations or activities of the Government, and is not primarily
in the commercial interest of the requester.
(a) In determining when fees shall be waived or reduced, the
Committee will consider the following six factors:
(1) The subject of the request, i.e., whether the subject of the
requested records concerns ``the operations or activities of the
Government;''
(2) The informative value of the information to be disclosed, i.e.,
whether the disclosure is ``likely to contribute'' to an understanding
of Government operations or activities;
(3) The contribution to an understanding of the subject by the
general public likely to result from disclosure, i.e., whether
disclosure of the requested information will contribute to ``public
understanding'';
(4) The significance of the contribution to public understanding,
i.e., whether the disclosure is likely to contribute ``significantly''
to public understanding of Government operations or activities;
(5) The existence and magnitude of a commercial interest, i.e.,
whether the requester has a commercial interest that would be furthered
by the requested disclosure; and, if so,
(6) The primary interest in disclosure, i.e., whether the magnitude
of the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is ``primarily in the commercial interest of the requester.''
(b) The Committee may waive or reduce fees associated with a request
for disclosure regardless of whether a waiver or reduction has been
requested if the Committee determines that disclosure will primarily
benefit the general public.
(c) Fees shall be waived in all circumstances where the amount of
the fee is $10 or less as the cost of collection would be greater than
the fee. This minimum shall be applied separately to each Committee
response when it is necessary for the Committee to make more than one
response to a request for records.
[54 FR 15189, Apr. 17, 1989. Redesignated at 56 FR 48983, Sept. 26,
1991, and amended at 59 FR 59345, Nov. 16, 1994]
Sec. 51-8.15 Collection of fees and charges.
(a) Except when prepayment is required, payments shall be collected
to the fullest extent possible at the time the requested materials are
furnished. Payments shall be made by requesters
[[Page 73]]
within 30 days of the date of the billing.
(b) Payments shall be made by check, draft, or money order made
payable to the Treasury of the United States.
(c) In instances where a requester has previously failed to pay a
fee, the Committee may require the requester to pay the full amount
owed, plus any applicable interest as provided below, as well as the
full estimated fee associated with any new request before it begins to
process the new or subsequent request.
(d) On requests that result in fees being assessed, interest will be
charged on an unpaid bill starting on the 31st day following the day on
which the billing was sent. Interest will be at the rate prescribed in
section 3717 of Title 31 United States Code, and will accrue from the
date of the billing.
(e) In attempting to collect fees levied under FOIA, the Committee
will abide by the provisions of the Debt Collection Act of 1982 (Pub. L.
97-365) in disclosing information to consumer reporting agencies and in
the use of collection agencies, where appropriate, to encourage payment.
Sec. 51-8.16 Preservation of records.
The Committee shall preserve all correspondence relating to the
requests it receives under this part, and all records processed pursuant
to such requests, until such time as the destruction of such
correspondence and records is authorized pursuant to Title 44 United
States Code, and to the General Records Schedule. Records shall not be
destroyed while they are the subject of a pending request, appeal, or
lawsuit under the Act.
PART 51-9--PRIVACY ACT RULES--Table of Contents
Subpart 51-9.1--General Policy
Sec.
51-9.101 Maintenance of records.
51-9.101-1 Collection and use.
51-9.101-2 Standards of accuracy.
51-9.101-3 Content of systems of records.
51-9.101-4 Rules of conduct.
51-9.101-5 Safeguarding systems of records.
51-9.102 Availability of records.
51-9.102-1 Specific exemptions.
Subpart 51-9.2--Disclosure of Records
51-9.201 Conditions of disclosure.
51-9.202 Accounting of disclosures.
Subpart 51-9.3--Individual Access to Records
51-9.301 Notification.
51-9.302 Times, places and requirements for access requests.
51-9.303 Access procedures.
51-9.303-1 Form of requests.
51-9.303-2 Special requirements for medical/psychological records.
51-9.303-3 Granting access.
51-9.303-4 Denials of access.
51-9.304 Fees.
51-9.304-1 Records available without charge.
51-9.304-2 Records available at a fee.
51-9.304-3 Prepayment of fees over $25.
51-9.304-4 Form of payment.
51-9.304-5 Reproduction fee schedule.
Subpart 51-9.4--Requests To Amend Records
51-9.401 Submission of requests to amend records.
51-9.402 Review of requests to amend records.
51-9.403 Approval of requests to amend.
51-9.404 Refusal of request to amend.
51-9.405 Request of review of refusal to amend a record.
Subpart 51-9.5--Report on New Systems and Alteration of Existing Systems
51-9.501 Reporting requirement.
51-9.502 Federal Register notice of establishment of new system or
alteration of existing system.
51-9.503 Effective date of new systems of records or alteration of an
existing system of records.
Subpart 51-9.6--Exceptions--[Reserved]
Subpart 51-9.7--Rules of Conduct for Disclosure of Information About an
Individual
51-9.701 Committee rules of conduct.
Authority: 5 U.S.C. 552a.
Source: 40 FR 51168, Nov. 3, 1975. Redesignated at 56 FR 48983,
Sept. 26, 1991.
Editorial Note: Nomenclature change to part 51-9 appears at 56 FR
48983, Sept. 26, 1991.
[[Page 74]]
Subpart 51-9.1--General Policy
Sec. 51-9.101 Maintenance of records.
Sec. 51-9.101-1 Collection and use.
Any information used in whole or in part in making a determination
about an individual's rights, benefits, or privileges under the
Committee programs, shall, to the extent practicable, be collected
directly from the subject individual. At the time information is
collected, the individual must be informed of the authority for
collecting such information, whether providing the information is
mandatory or voluntary, the purposes for which the information will be
used, the routine uses as published in the Federal Register, and the
effects on the individual, if any, of not providing the information. The
information collected shall be used only for the intended purpose or
permission for additional use will be obtained from the subject
individual.
Sec. 51-9.101-2 Standards of accuracy.
The Executive Director shall ensure that all records which are used
by the agency to make determinations about any individual are maintained
with such accuracy, relevance, timeliness, and completeness as is
reasonably necessary to assure fairness to the individual. Upon petition
by an individual, the Executive Director shall provide the individual
with the opportunity to review his records, and to request amendment of
a portion which the individual believes is not accurate, relevant,
timely or complete. Prior to dissemination of records about any
individual to any person or to another agency, exclusive of disclosure
pursuant to the Freedom of Information Act, the Executive Director shall
make reasonable effort to ensure that such records are accurate,
complete, timely, and relevant.
Sec. 51-9.101-3 Content of systems of records.
The Executive Director shall maintain in records only such
information about an individual as is relevant and necessary to
accomplish an agency purpose required by statute or executive order.
Such records shall not contain any information describing how any
individual exercises rights guaranteed by the First Amendment unless
specifically authorized by statute, by the subject individual, or is
pertinent to and within the scope of an authorized law enforcement
activity. For these purposes, First Amendment rights include, but are
not limited to, religious and political beliefs, freedom of speech, the
press, assembly, and freedom to petition.
Sec. 51-9.101-4 Rules of conduct.
Any employee of the Committee involved in the design, development,
operation or maintenance of any system of records, or in maintaining any
record, shall review the provisions of 5 U.S.C. 552a and these
regulations, and shall conduct himself accordingly with the rules of
conduct concerning the protection of personal information outlined in 41
CFR 51-9.7, Disclosure of Information about an Individual.
Sec. 51-9.101-5 Safeguarding systems of records.
The Executive Director shall ensure that appropriate administrative,
technical and physical safeguards are established to ensure the security
and confidentiality of records and to protect against any anticipated
threats or hazards to their security or integrity which could result in
substantial harm, embarrassment, inconvenience, or unfairness to any
individual on whom information is maintained.
Sec. 51-9.102 Availability of records.
Committee records pertaining to an individual shall be made
available to the subject individual to the greatest extent possible.
Disclosures of records to other than the subject individual will be made
only in accordance with Subpart 51-9.2 of this part.
Sec. 51-9.102-1 Specific exemptions.
Systems of records maintained by the Committee which have been
exempted from certain requirements of the Privacy Act are designated in
Subpart 51-9.6 of this part. An individual shall have access to all
exempted records containing information about him under procedures
outlined in Subpart 51-9.3 of this part. Upon request,
[[Page 75]]
an individual shall receive an accounting of any disclosure of
information about him.
Subpart 51-9.2--Disclosure of Records
Sec. 51-9.201 Conditions of disclosure.
No Committee member or employee of the Committee shall disclose any
record to any person or to another agency without the express written
consent of the subject individual unless the disclosure is:
(a) To Committee members or employees who have a need for the
information in the official performance of their duties.
(b) Required under the provisions of the Freedom of Information Act.
(c) For a routine use as published in the annual notice in the
Federal Register.
(d) To the Bureau of Census for uses pursuant to Title 13.
(e) To a recipient who has provided the agency with advance adequate
written assurance that the record will be used solely as a statistical
research or reporting record and the record is to be transferred in a
form that is not individually identifiable. The written statement should
include as a minimum:
(1) A statement of the purpose for requesting the records, and
(2) Certification that the records will be used only for statistical
purposes.
These written statements shall be maintained as records. In addition to
stripping, personally identifying information from records released for
statistical purpose, the Committee will ensure that the identity of the
individual cannot reasonably be deducted by combining various
statistical records.
(f) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the United States Government, or for evaluation by the
Administrator of General Services or his designee to determine whether
the record has such value.
(g) To another agency or instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is authorized
by law, and if the head of the agency or instrumentality has made a
written request to the agency which maintains the record specifying the
particular portion desired and the law enforcement activity for which
the record is sought.
(h) To a person showing compelling circumstances affecting the
health and safety of an individual (not necessarily the individual to
whom the record pertains). Upon such disclosure, a notification of such
shall be sent to the last known address of the individual.
(i) To either House of Congress or to a subcommittee or committee
(joint or of either House, to the extent that the subject matter falls
within their jurisdiction).
(j) To the Comptroller General, or any of his authorized
representatives in the course of the performance of the duties of the
General Accounting Office, or
(k) Pursuant to the order of the court of competent jurisdiction.
Sec. 51-9.202 Accounting of disclosures.
(a) Except for disclosures made pursuant to paragraphs (a) and (b)
of Sec. 51-9.201 of this part, an accurate accounting of each disclosure
will be made and retained for five years after the disclosure or for the
life of the record, whichever is longer. The accounting will include the
date, nature, and purpose of each disclosure, and the name and address
of the person or agency to whom the disclosure is made.
(b) The accounting will be recorded and maintained in any manner the
Executive Director determines is satisfactory for the purposes of
constructing a listing of all disclosures, and for providing a cross
reference to the justification or basis upon which the disclosure was
made, including written documentation required when records are released
for statistical or law enforcement purposes and any written consents
provided by the individual.
(c) Except for disclosures made to agencies or instrumentalities in
law enforcement activities in accordance with Sec. 51-9.201(e)(2) or for
disclosures made from systems exempted from this requirement of the Act
as outlined in
[[Page 76]]
subpart 51-9.6 of this part, the accounting of disclosures will be made
available to the individual upon request. Procedures for requesting
access to the accounting are outlined in subpart 51-9.3 of this part.
Subpart 51-9.3--Individual Access to Records
Sec. 51-9.301 Notification.
Any individual who wishes to determine if a system of records
maintained by the Committee contains a record pertaining to him should
direct a request to the Executive Director at the address indicated in
the public notice describing the system of records which has been
published in the Federal Register. The request should display clearly
the legend ``Privacy Act Request'' both on the face of the request
letter and on the face of the envelope. The request letter should
contain the complete name and identifying number of the system as
published in the Federal Register; the full name, address, and telephone
number of the subject individual; a brief description of the nature,
time, place and circumstances of the individual's association with the
Committee and any other information which the individual believes would
facilitate the Executive Director's determination whether the
individual's name is included in the system of records. The Executive
Director shall answer or acknowledge the request within ten working
days.
Sec. 51-9.302 Times, places and requirements for access requests.
Records will be available for authorized access during normal
business hours at the offices where the records are located. A requester
should be prepared to identify himself through production of a driver's
license, student or employee identification card, or other
identification acceptable to the Executive Director. When the disclosure
of records to the wrong individual would result in substantial harm,
embarrassment, inconvenience, or unfairness to the subject individual,
the Executive Director may require a notarized statement of identity.
The Executive Director shall ensure that such times, places, and
requirements for identification are not excessive and do not restrict
individual access unduly.
Sec. 51-9.303 Access procedures.
Sec. 51-9.303-1 Form of requests.
(a) An individual must request access to his record in writing. The
Executive Director shall accept by telephone only general inquiries for
information regarding systems of records or procedures.
(b) A written request should be directed to the Executive Director
as listed in the public notice describing the system of records. The
individual should display clearly on the face of the request letter and
on the face of the envelope the legend ``Privacy Act Request'', and
include the complete name and identifying number of the system as
published in the Federal Register; the full name, address, the telephone
number of the individual; a brief description of the nature, time, place
and circumstances of the individual's association with the Committee;
and any other information which the individual believes would facilitate
the Executive Director's search for the record.
(c) An individual who wishes to have a person of his choosing
accompany him in reviewing a record must sign a statement authorizing
the disclosure of his record in the presence of another individual, if
so requested by the Executive Director. An individual who intends to
visit the Committee office in order to review a record should make an
appointment with the Executive Director at least one week in advance.
Sec. 51-9.303-2 Special requirements for medical/psychological records.
(a) The Executive Director may require an individual who requests
access to his medical or psychological record to designate a physician
of his choice to whom he may disclose the individual's record if in the
opinion of the Executive Director, disclosure directly to the individual
might be harmful.
(b) The Executive Director shall mark records which should not be
disclosed directly to the subject individual and shall inform an
individual
[[Page 77]]
requesting such records of the requirement to designate a physician to
whom the records can be disclosed.
Sec. 51-9.303-3 Granting access.
(a) Upon receipt of a request for access to non-exempt records, the
Executive Director shall make such records available to the individual,
or shall acknowledge the request within ten working days. The
acknowledgment shall indicate when the Executive Director will make the
record available.
(b) If the Executive Director anticipates more than ten days in
making a record available he also shall include in the acknowledgement
specific reasons for the delay.
(c) If an individual's request for access does not contain
sufficient information to permit the Executive Director to locate the
record, the Executive Director shall request additional information from
the individual and shall have ten working days following receipt of the
additional information in which to make the record available, or to
acknowledge receipt of the request and indicate when the record will be
available. In no case shall more information be requested from the
individual than that contained in the pertinent system of records.
(d) The Executive Director, at his discretion, either shall permit
an individual to examine the original of the record, or shall provide
the individual with a copy of the record. Fees shall be charged only for
copies requested by the individual and not for copies provided to the
individual for convenience of the agency.
(e) An individual may request to pick up a record in person or
receive it by mail, directed to the name and address provided by the
individual in his request. The Executive Director shall not make a
record available to a third party for delivery to the subject
individual, except in the case of medical records outlined in Sec. 51-
9.303-2.
(f) The Executive Director shall maintain in an individual's record
an accounting of disclosures to the individual's documenting compliance
with the request.
(g) The procedures for access to an accounting of disclosures is
identical to the procedure for access to a record as set forth in this
section.
Sec. 51-9.303-4 Denials of access.
(a) The Executive Director may deny any individual access to his
record only on the grounds that the Committee has published rules in the
Federal Register exempting the pertinent system of records from the
access requirement.
(b) Upon receipt of a request for access to an exempt system, the
Executive Director shall prepare a letter denying access. The letter of
denial shall contain a justification for denial of access which includes
appropriate citation to the exemption provisions of these rules or other
Federal Register notice exempting the system.
Sec. 51-9.304 Fees.
Sec. 51-9.304-1 Records available without charge.
The Executive Director shall make one copy of a record available to
an employee without charge, and may waive the fee requirement for any
other individual requesting records if the cost of collecting the fee is
an unduly large part of, or greater than, the fee, or when furnishing
the record without charge conforms to generally established business
custom or is in the public interest.
Sec. 51-9.304-2 Records available at a fee.
The Executive Director shall provide one copy of a record to the
individual at a fee prescribed in Sec. 51-9.304-5. A reasonable number
of additional copies will be provided for the applicable fee where
reproduction services are not readily available.
Sec. 51-9.304-3 Prepayment of fees over $25.
When the Executive Director determines that the anticipated total
fee is likely to exceed $25, he shall notify the individual that he must
prepay the anticipated fee prior to making the records available. The
Committee will remit the excess paid by the individual or bill the
individual for an additional amount according to variations between the
final fee charged and the amount prepaid.
[[Page 78]]
Sec. 51-9.304-4 Form of payment.
Payment shall be by check or money order payable to the Committee
for Purchase from People who are Blind or Severely Disabled and shall be
addressed to the Executive Director.
[40 FR 51168, Nov. 3, 1975, as amended at 59 FR 16777, Apr. 8, 1994]
Sec. 51-9.304-5 Reproduction fee schedule.
(a) The fee for reproducing a copy of a record (by routine
electrostatic copying) up to and including material 8\1/2\ x 14 inches
shall be $0.10 per page.
(b) The fee for reproducing a copy of a record over 8\1/2\ x 14
inches or whose physical characteristics do not permit reproduction by
routine electrostatic copying shall be the direct cost of reproducing
the records through Government or commercial sources.
Subpart 51-9.4--Requests To Amend Records
Sec. 51-9.401 Submission of requests to amend records.
(a) An individual who desires to amend any record or information
pertaining to him should direct a written request to the Executive
Director, Committee for Purchase from People who are Blind or Severely
Disabled, Crystal Gateway 3, Suite 310, 1215 Jefferson Davis Highway,
Arlington, Virginia 22202-4302.
(b) A request should bear the legend ``Privacy Act--Request to Amend
Record'' prominently marked on both the face of the request letter and
the envelope.
(5 U.S.C. 552a)
[40 FR 51168, Nov. 3, 1975. Redesignated at 56 FR 48983, Sept. 26, 1991,
and amended at 59 FR 16777, Apr. 8, 1994; 63 FR 16440, Apr. 3, 1998]
Sec. 51-9.402 Review of requests to amend records.
(a) Upon receipt of a request to amend a record, the responsible
official, whenever practicable shall complete the review and advise the
individual of the results within ten working days. If a determination
cannot be made within ten working days, the Executive Director, within
ten working days, shall send the individual a written acknowledgment of
receipt of the request including a description of the request and the
date when the requester may except to be advised of action taken on the
request. Except in unusual circumstances, the Executive Director shall
complete the review within 30 working days. In unusual circumstances,
causing delay beyond the 30 day limit, the Executive Director shall
inform the individual in writing of the cause of delay, the actions
taken to review the record, and the date the Executive Director
anticipates the review to be complete.
(b) When reviewing a record in response to a request to amend, the
Executive Director shall assess the accuracy, relevance, timeliness, and
completeness of the record to ensure fairness to the individual in any
determination made on the basis of the record. With respect to a request
to delete information, the Executive Director also shall review the
request and record to determine whether the information is relevant and
necessary to accomplish an agency purpose required to be accomplished by
law or Executive Order.
Sec. 51-9.403 Approval of requests to amend.
If the Executive Director agrees to amend a record, he promptly
shall make the necessary corrections to the record and shall send a copy
of the corrected record to the individual. Where an accounting of
disclosure has been maintained, he shall advise all previous recipients
of the record of the fact that a correction was made of/and the
substance of the correction. Where practicable, the Executive Director
shall send a copy of the corrected record to previous recipients.
Sec. 51-9.404 Refusal of request to amend.
(a) The Executive Director, or any official acting for him, shall
have the authority to issue an initial refusal of a request to amend a
record within his custody and shall be responsible for the initial
adverse agency determination.
(b) If the Executive Director, after reviewing the request to amend
a record, determines not to amend the
[[Page 79]]
record, he promptly shall advise the requester in writing of the
determination. The refusal letter (1) shall state the reasons for
refusal, (2) shall state the requester's right to seek a review of the
initial determination, and (3) shall state the procedures for requesting
such review.
Sec. 51-9.405 Request of review of refusal to amend a record.
(a) An individual who disagrees with the refusal to amend may appeal
that refusal with the Committee. An individual should address a request
for review of a refusal to amend any record, exclusive of a personnel
record of a current Committee employee to the Chairperson, Committee for
Purchase from People who are Blind or Severely Disabled, Crystal Gateway
3, Suite 310, 1215 Jefferson Davis Highway, Arlington, Virginia 22202-
4302.
(b) A request to review must be in writing and should include a copy
of the initial request and refusal to amend. The request to review
should bear the legend ``Privacy Act--Request for Review of Refusal to
Amend'' on both the face of the letter and the envelope. The Chairperson
shall complete the review and make a determination no later than 30
working days after receipt of the request for review, unless a
determination is made to extend the 30 day period. If a determination is
made to extend the 30 day period, the Chairperson shall notify the
requester in writing of the reasons for the delay and the date when the
review will be completed.
(c) Upon receipt of a request to review a refusal to amend, the
Chairperson shall undertake an independent review of the request and
initial determination. If, after conducting the review, the Chairperson
agrees to amend, he shall notify the requester promptly in writing of
the determination, amend the record, and notify previous recipients in
accordance with Sec. 51-9.403.
(d) If, after conducting the review, the Chairperson agrees with the
refusal to amend the record, he shall notify the requester promptly in
writing of the determination. The notification shall include the reasons
for the refusal, and shall advise the individual of his right to file a
statement of disagreement, and the procedures for doing so. The
Chairperson also shall advise the individual that such statement of
disagreement will be made available in any subsequent disclosures of the
record together with a concise statement summarizing reasons for refusal
where the responsible official deems it appropriate. The Chairperson
also will advise the individual of his right to bring civil action
against the agency in a district court of the United States.
(5 U.S.C. 552a)
[40 FR 51168, Nov. 3, 1975, Redesignated at 56 FR 48983, Sept. 26, 1991,
and amended at 59 FR 16777, Apr. 8, 1994; 59 FR 59345, Nov. 16, 1994; 63
FR 16440, Apr. 3, 1998]
Subpart 51-9.5--Report on New Systems and Alteration of Existing Systems
Sec. 51-9.501 Reporting requirement.
(a) No later than 30 days prior to the establishment of a new
systems of records, the Executive Director shall submit a copy of the
proposal to the President of the Senate, the Speaker of the House of
Representatives, and the Director of the Office of Management and Budget
for their evaluation of the probable or potential effect of such
proposal on the privacy and other personal or property rights of
individuals of the disclosure of information relating to such
individuals.
(b) No later than 30 days prior to the alteration of a system of
records, the Executive Director for the maintenance of that system of
records shall submit a copy of the proposal to the President of the
Senate, the Speaker of the House of Representatives, and the Director of
the Office of Management and Budget for their evaluation of the probable
or potential effect of such proposal on the privacy and other personal
or property rights of individuals of the disclosure of information
relating to such individuals.
Sec. 51-9.502 Federal Register notice of establishment of new system or alteration of existing system.
(a) When the Executive Director receives notice that the Senate, the
[[Page 80]]
House of Representatives, and the Office of Management and Budget do not
object to the establishment of a new system of records, or the
alteration of an existing system of records, or
(b) When no fewer than 30 days elapse from the submission of the
proposal to the Senate, the House of Representatives, and the Office of
Management and Budget, without receipt by the Executive Director of an
objection to the proposal, then a notice shall be published in the
Federal Register of the proposed establishment or alteration of a system
of records. The notice shall include all of the information required to
be provided by the Privacy Act of 1974, and such other information as
deemed necessary.
Sec. 51-9.503 Effective date of new systems of records or alteration of an existing system of records.
Systems of records proposed to be established or altered in
accordance with the provision of the subpart shall be effective no
sooner than 30 days from the publication of notice required by Sec. 51-
9.502.
Subpart 51-9.6--Exemptions [Reserved]
Subpart 51-9.7--Rules of Conduct for Disclosure of Information About an
Individual
Sec. 51-9.701 Committee rules of conduct.
(a) Every Committee member and employee who is involved in the
design, development, operation, or maintenance of a system of records,
or who has access to a system of records, shall familiarize himself with
the requirements of the Privacy Act of 1974 (5 U.S.C. 552a) and the
Committee regulations and orders issued thereunder and apply these
requirements to all systems of records.
(b) No Committee member or employee shall disclose any record which
is contained in a system of records by any means of communication to any
person, or to another agency, except pursuant to a written request by,
or with the prior written consent of the individual to whom the record
pertains, unless the disclosure would be to a recipient specified in
paragraph (c) of this section. The term ``record'' means any item,
collection, or grouping of information about an individual that is
maintained by an agency, including but not limited to, his education,
financial transactions, medical history, and criminal or employment
history and that contains his name, or the identifying number, symbol,
or other identifying particular assigned to the individual, such as a
finger or voice print or a photograph. The term ``system of records''
means a group of any records under the control of the Committee from
which information is retrieved by the name of the individual or by some
identifying number symbol, or other identifying particular assigned to
the individual. The term ``routine use'' means, with respect to the
disclosure of a record, the use of such record for a purpose which is
compatible with the purpose for which it was collected. The term
``individual'' means a citizen of the United States or an alien lawfully
admitted for permanent residence. The term ``agency'' is defined in 5
U.S.C. 552(e).
(c) An employee may disclose any record which is contained in a
system of records, without a written request by and without the prior
written consent of the individual to whom the record pertains, if the
disclosure would be:
(1) To those Committee members and employees of the agency which
maintains the record who have a need for the record in the performance
of their duties;
(2) Required under section 552 of Title 5 U.S.C.;
(3) For a routine use as described in paragraph (b) of this section;
(4) To the Bureau of the Census for purposes of planning or carrying
out a census or survey or related activity pursuant to the provisions of
Title 13 U.S.C.;
(5) To a recipient who has provided the agency with advance adequate
written assurance that the record will be used solely as a statistical
research or reporting record, and the record is to be transferred in a
form that is not individually identifiable;
(6) To the National Archives of the United States as a record which
has
[[Page 81]]
sufficient historical or other value to warrant its continued
preservation by the United States Government, or for evaluation by the
Administrator of General Services or his designee to determine whether
the record has such value;
(7) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is authorized
by law, and if the head of the agency or instrumentality has made a
written request to the agency which maintains the record specifying the
particular portion desired and the law enforcement activity for which
the record is sought;
(8) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
(9) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
(10) To the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the
General Accounting Office; or
(11) Pursuant to the order of a court of competent jurisdiction.
(d) No Committee member or employee shall maintain a record
describing how any individual exercises rights guaranteed by the First
Amendment unless expressly authorized by statute or by the individual
about whom the record is maintained or unless pertinent to and within
the scope of an authorized law enforcement activity.
(e) No Committee member or employee shall sell or rent an
individual's name and address unless such action is specifically
authorized by law.
(f) A Committee member or employee, who by virtue of his employment
or official position, has possession of, or access to, agency records
which contain individually identifiable information the disclosure of
which is prohibited by paragraph a of this section or by any other rules
or regulations established under the Privacy Act of 1974, and who (1)
knowing that disclosure of the specific material is so prohibited,
willfully discloses the material in any manner to any person or agency
not entitled to receive it, or (2) willfully maintains a system of
records without meeting the notice requirements of the Privacy Act of
1974, or (3) knowingly and willfully requests or obtains any record
concerning an individual from any agency under false pretenses, is
subject to criminal penalties and administrative sanctions. Any
Committee member or employee who (i) makes a determination not to amend
an individual's record in accordance with the Privacy Act of 1974, or
(ii) refuses to comply with an individual's request to gain access to
review, and obtain a copy of any information pertaining to him, or (iii)
fails to maintain any record concerning any individual with such
accuracy, relevance, timeliness, and completeness as is necessary to
assure fairness in any determination relating to the qualifications,
character, rights, or opportunities or of benefits to the individual
that may be made on the basis of such record, and consequently a
determination is made which is adverse to the individual, or (iv) fails
to comply with any provision of the Privacy Act of 1974 or any Committee
regulation implementing it, subjects the Committee to civil penalties
and himself to administrative sanctions.