Document zQZpObXQZ1Kj6m8nzVK0yvV6R

\ U. S. DEPARTMENT OF LABdC .) Wage and Hour and Public Contracts Divisions Washington 25, D. C. PLAINTIFF'S || exhibit Safety and Health Standards for Federal Supply Contracts (Reprint from Federal Re4ister dated December 28, 1960) James P. Mitchell, Secretary Clarence T. Lundqulst, Administrator Title 41--PUBLIC CONTRACTS tions where evidence is not required. the regulations herein promulgated has Where, therefore, the common experi relied quite extensively on the outstand Chapter 50--Division of Public Con ence of men is all that Is needed to lead rational and,prudent person to the ing contributions of the private and pub lic organizations which are generally ac tracts, Department of Labor conclusion that certain conditions of em cepted as preeminent In this field. PART 50-204--SAFETY AND HEALTH ployment are Incompatible with the safety and health of employees, no de Among these are' the publications of American Standards Association, Inc., STANDARDS FOR FEDERAL SUPPLY fense is provided by the statutory American Society of Mechanical Engi CONTRACTS "prima-facie evidence" rule merely be neers, National Fire Protection Associa The Walsh-Healcy Public Contracts Act (49 Stat. 2036, 41 U.S.C. 35 et seq.) 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 condi tions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged In the performance of said contract". A single standard of safety and health conditions Is thus required for all work subject to the Act. An objective descrip tion of the working conditions encoun tered, established by a preponderance of the reliable, probative, and substantial evidence, is, of course, essential to the administrative application of this stand ard. A second question which must be resolved is whether conditions of the type described are "unsanitary or haz ardous or dangerous to the health or safety of employees". This is a question of fact For assistance In Its resolution, the act provides a special rule of evi dence: "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." The statutory provision concerning "prima-facie evidence" does not purport to take the place of the uniform national standard. It has application only to issues which require evidence. In the absence of opposing evidence. It author izes resolution of such Issues compatibly cause such conditions may not be spe cifically prohibited In the State safety, sanitary, and factory Inspection laws, or the regulations hereby proposed. Neither Is It necessary to call a witness to testify concerning the hazardous nature of such conditions. The statutory rule of "prima-facie evi dence" was not designed to deter the Secretary of Labor from diligent inquiry even beyond the safety, sanitary, and factory Inspection laws of the several states to discover more directly what are the "working conditions which are unsanitary or habardous or dangerous to the health and safety of employees." This Is demonstrated by the provisions In sections 4 and 5 of the Act, directing the Secretary to administer It and au thorizing him to appoint experts, make Investigations, hold hearings, compel the production of evidence, and make find ings of fact. Accordingly, following en actment of the Act, experts were ap pointed and their testimony used In the administrative enforcement proceedings conducted under section 6 of the Act. Differences of opinion over what condi tions of employment fail to meet the statutory standard have thus been re solved with the assistance of expert testi mony on a case-by-case basis in nearly a quarter of a'century of hearings and findings under the Act. These have been conducted in accordance with sections 5, 7, and 8 of the Administrative Pro cedure Act since its enactment. The hazardous characteristic of a par ticular working condition. Is, of course, the likelihood that It will cause Illness, or Injury In the employment situation. This characteristic is not always im mediately apparent. Causative analysis of Injury frequency rates In Industry has shed much light on the Importance of certain precautions not fully appreciated by those responsible for the operation tion, National Board of Eire Underwrit ers, the Public Health Service of the United States Department of Health, Education, and Welfare, the Bureau of Mines of the United States Department of the interior, and the Atomic Energy Commission. Section 7(d) of the Administrative Procedure Act recognizes that, even in the most formal type of administrative adjudications, agency decision may rest on "official notice of a material fact not appearing in the evidence In the record." but It requires that "any party Eh&ll on timely request be afforded an oppor tunity to show the contrary". The At torney General's Manual on the Admin istrative Procedure Act points out (p. 80) that this authority "extends properly to all matters as to which the agency by reason of Its functions Is presumed to be expert, such as technical or scien tific facts within Its specialized knowl edge. Cf. Hit. Rep. p. 38 (Sen. Doc. p. 272). * * The matters thus noticed become a part of the record and, unless successfully controverted, furnish the same basis for findings of fact as does 'evidence' In the usual sense." The hazardous characteristics of many working conditions, thus being facts of a "technical or scientific" nature, and having come within the Department's "specialized knowledge" by reosofa of Its experience, proof of them In administra tive adjudications by official notice Is appropriate. The facts declared In these regulations are soundly based In the ex perience of the Department cud In the experience of outstanding public and private experts in their specialized di visions of the field of health and safety engineering. The regulations herewith promulgated extend, however. Into areas In which reasonable men may differ. Any party to an administrative adjudi with the prima-facie evidence. Also, of Industrial establishments. The De cation who is adversely affected by them rules concerning prima-facie evidence partment's discovery and evaluation of will, therefore, have the opportunity to obviously have no application in situa- these hazards and the development of contest them by presenting the Issue in No. 261--Part n-------1 13809