40 U.S.C. § 3704 — Health and safety standards in building

Page 145 TITLE 40—PUBLIC BUILDINGS, PROPERTY, AND WORKS § 3704 tory for which the contract work is done or which is providing financial assistance for the work, or to the Mayor of the District of Co- lumbia in the case of liquidated damages with- held for the use and benefit of the District. (2) REVIEW BY AGENCY HEAD OR MAYOR.—The agency head or Mayor may review the admin- istrative determination of liquidated damages. The agency head or Mayor may issue a final order affirming the determination or may rec- ommend to the Secretary of Labor that an ap- propriate adjustment in liquidated damages be made, or that the contractor or subcontractor be relieved of liability for the liquidated dam- ages, if it is found that the amount is incor- rect or that the contractor or subcontractor violated this chapter inadvertently, notwith- standing the exercise of due care by the con- tractor or subcontractor and the agents of the contractor or subcontractor. (3) REVIEW BY SECRETARY.—The Secretary shall review all pertinent facts in the matter and may conduct any investigation the Sec- retary considers necessary in order to affirm or reject the recommendation. The decision of the Secretary is final. (4) JUDICIAL ACTION.—A contractor or sub- contractor aggrieved by a final order for the withholding of liquidated damages may file a claim in the United States Court of Federal Claims within 60 days after the final order. A final order of the agency head, Mayor, or Sec- retary is conclusive with respect to findings of fact if supported by substantial evidence. (e) APPLICABILITY OF OTHER LAWS.— (1) REORGANIZATION PLAN.—Reorganization Plan Numbered 14 of 1950 (eff. May 24, 1950, 64 Stat. 1267) applies to this chapter. (2) SECTION 3145.—Section 3145 of this title ap- plies to contractors and subcontractors re- ferred to in section 3145 who are engaged in the performance of contracts subject to this chapter. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1170; Pub. L. 113–50, § 2(b), Nov. 21, 2013, 127 Stat. 578.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3703(a) ........ 40:330(a) (1st sen- tence). Pub. L. 87–581, title I, § 104, Aug. 13, 1962, 76 Stat. 358; Pub. L. 97–164, title I, § 160(a)(13), Apr. 2, 1982, 96 Stat. 48. 3703(b) ........ 40:330(a) (2d, last sentences). 3703(c) ........ 40:330(b). 3703(d) ........ 40:330(c). 3703(e) ........ 40:330(d). In subsection (a), the words ‘‘or possession’’ are omit- ted for consistency in this chapter. The words ‘‘or days’’ are omitted because of 1:1. In subsection (c), the word ‘‘Mayor’’ is substituted for ‘‘Commissioners’’ [meaning the Board of Commis- sioners of the District of Columbia] [subsequently changed to ‘‘Commissioner’’ (meaning the Commis- sioner of the District of Columbia) because of section 401 of Reorganization Plan No. 3 of 1967 (eff. Nov. 3, 1967, 81 Stat. 951)] because of section 421 of the District of Columbia Home Rule Act (Public Law 93–198, 87 Stat. 789). In subsection (d)(4), the words ‘‘United States Court of Federal Claims’’ are substituted for ‘‘United States Claims Court’’ because of section 902(b)(1) of the Fed- eral Courts Administration Act of 1992 (Public Law 102–572, 106 Stat. 4516). Editorial Notes REFERENCES IN TEXT Reorganization Plan Numbered 14 of 1950, referred to in subsec. (e)(1), is Reorg. Plan No. 14 of 1950, eff. May 24, 1950, 15 F.R. 3176, 64 Stat. 1267, which is set out in the Appendix to Title 5, Government Organization and Employees. AMENDMENTS 2013—Subsec. (b)(3). Pub. L. 113–50 substituted ‘‘Sec- retary of Labor’’ for ‘‘Comptroller General’’ in two places. § 3704. Health and safety standards in building trades and construction industry (a) CONDITION OF CONTRACTS.— (1) IN GENERAL.—Each contract in an amount greater than $100,000 that is entered into under legislation subject to Reorganization Plan Numbered 14 of 1950 (eff. May 24, 1950, 64 Stat. 1267) and is for construction, alteration, and repair, including painting and decorating, must provide that no contractor or subcon- tractor contracting for any part of the con- tract work shall require any laborer or me- chanic employed in the performance of the contract to work in surroundings or under working conditions that are unsanitary, haz- ardous, or dangerous to health or safety, as es- tablished under construction safety and health standards the Secretary of Labor prescribes by regulation based on proceedings pursuant to section 553 of title 5, provided that the pro- ceedings include a hearing similar in nature to that authorized by section 553 of title 5. (2) CONSULTATION.—In formulating standards under this section, the Secretary shall consult with the Advisory Committee created by sub- section (d). (b) COMPLIANCE.— (1) ACTIONS TO GAIN COMPLIANCE.—The Sec- retary may make inspections, hold hearings, issue orders, and make decisions based on find- ings of fact as the Secretary considers nec- essary to gain compliance with this section and any health and safety standard the Sec- retary prescribes under subsection (a). For those purposes the Secretary and the United States district courts have the authority and jurisdiction provided by sections 6506 and 6507 of title 41. (2) REMEDY WHEN NONCOMPLIANCE FOUND.— When the Secretary, after an opportunity for an adjudicatory hearing by the Secretary, es- tablishes noncompliance under this section of any condition of a contract described in— (A) section 3701(b)(1)(B)(i) or (ii) of this title, the governmental agency for which the contract work is done may cancel the con- tract and make other contracts for the com- pletion of the contract work, charging any additional cost to the original contractor; or (B) section 3701(b)(1)(B)(iii) of this title, the governmental agency which is providing the financial guarantee, assistance, or insur- ance for the contract work may withhold the guarantee, assistance, or insurance attrib- utable to the performance of the contract. Page 146 TITLE 40—PUBLIC BUILDINGS, PROPERTY, AND WORKS § 3704 (3) NONAPPLICABILITY.—Section 3703 of this title does not apply to the enforcement of this section. (c) REPEATED VIOLATIONS.— (1) TRANSMITTAL OF NAMES OF REPEAT VIOLA- TORS TO COMPTROLLER GENERAL.—When the Secretary, after an opportunity for an agency hearing, decides on the record that, by re- peated willful or grossly negligent violations of this chapter, a contractor or subcontractor has demonstrated that subsection (b) is not ef- fective to protect the safety and health of the employees of the contractor or subcontractor, the Secretary shall make a finding to that ef- fect and, not sooner than 30 days after giving notice of the finding to all interested persons, shall transmit the name of the contractor or subcontractor to the Comptroller General. (2) BAN ON AWARDING CONTRACTS.—The Comp- troller General shall distribute each name transmitted under paragraph (1) to all agen- cies of the Federal Government. Unless the Secretary otherwise recommends, the con- tractor, subcontractor, or any person in which the contractor or subcontractor has a substan- tial interest may not be awarded a contract subject to this section until three years have elapsed from the date the name is transmitted to the Comptroller General. The Secretary shall terminate the ban if, before the end of the three-year period, the Secretary, after af- fording interested persons due notice and an opportunity for a hearing, is satisfied that a contractor or subcontractor whose name was transmitted to the Comptroller General will comply responsibly with the requirements of this section. The Comptroller General shall in- form all Government agencies after being in- formed of the Secretary’s action. (3) JUDICIAL REVIEW.—A person aggrieved by the Secretary’s action under this subsection or subsection (b) may file with the appropriate United States court of appeals a petition for review of the Secretary’s action within 60 days after receiving notice of the Secretary’s ac- tion. The clerk of the court immediately shall send a copy of the petition to the Secretary. The Secretary then shall file with the court the record on which the action is based. The findings of fact by the Secretary, if supported by substantial evidence, are final. The court may enter a decree enforcing, modifying, modifying and enforcing, or setting aside any part of, the order of the Secretary or the ap- propriate Government agency. The judgment of the court may be reviewed by the Supreme Court as provided in section 1254 of title 28. (d) ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH.— (1) ESTABLISHMENT.—There is an Advisory Committee on Construction Safety and Health in the Department of Labor. (2) COMPOSITION.—The Committee is com- posed of nine members appointed by the Sec- retary, without regard to chapter 33 of title 5, as follows: (A) Three members shall be individuals representative of contractors to whom this section applies. (B) Three members shall be individuals representative of employees primarily in the building trades and construction industry engaged in carrying out contracts to which this section applies. (C) Three members shall be public rep- resentatives who shall be selected on the basis of their professional and technical competence and experience in the construc- tion health and safety field. (3) CHAIRMAN.—The Secretary shall appoint one member as Chairman. (4) DUTIES.—The Committee shall advise the Secretary— (A) in formulating construction safety and health standards and other regulations; and (B) on policy matters arising in carrying out this section. (5) EXPERTS AND CONSULTANTS.—The Sec- retary may appoint special advisory and tech- nical experts or consultants as may be nec- essary to carry out the functions of the Com- mittee. (6) COMPENSATION AND EXPENSES.—Com- mittee members are entitled to receive com- pensation at rates the Secretary fixes, but not more than $100 a day, including traveltime, when performing Committee business, and ex- penses under section 5703 of title 5. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1172; Pub. L. 109–284, § 6(16), (17), Sept. 27, 2006, 120 Stat. 1213; Pub. L. 111–350, § 5(l)(20), Jan. 4, 2011, 124 Stat. 3852.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3704(a) ........ 40:333(a). Pub. L. 87–581, title I, § 107(a)–(e), as added Pub. L. 91–54, § 1, Aug. 9, 1969, 83 Stat. 96; Pub. L. 103–355, title IV, § 4104(c)(2), Oct. 13, 1994, 108 Stat. 3342. 3704(b) ........ 40:333(b), (c). 3704(c) ........ 40:333(d). 3704(d) ........ 40:333(e). In subsection (a)(1), the words ‘‘in an amount greater than $100,000’’ are substituted for ‘‘(other than a con- tract referred to in section 329(c) of this title)’’ for clar- ity. In subsection (b), the text of 40:333(c) is omitted as unnecessary because the district courts have jurisdic- tion on all civil actions involving a federal question since the requirement of a threshold amount in con- troversy was deleted. In paragraph (2)(B), the words ‘‘guarantee’’ and ‘‘insurance’’ are added for consistency in this section and with section 3701(b)(1)(B)(iii) of the revised title. In subsection (c)(2), the words ‘‘The Secretary shall end the ban’’ are substituted for ‘‘he [sic] shall termi- nate the application of the preceding sentence to such contractor or subcontractor (and to any person in which the contractor or subcontractor has a substan- tial interest)’’ for clarity and to eliminate unnecessary words. The word ‘‘thereafter’’ is omitted as unneces- sary. In subsection (c)(3), the words ‘‘as provided in section 2112 of title 28’’, ‘‘make and’’, and ‘‘upon certiorari or certification’’ are omitted as unnecessary. In subsection (d)(2), before clause (A), the words ‘‘chapter 33 of title 5’’ are substituted for ‘‘the civil service laws’’ because of section 7(b) of the Act of Sep- tember 6, 1966 (Public Law 89–554, 80 Stat. 631), the first section of which enacted Title 5, United States Code. In subsection (d)(6), the words ‘‘expenses under sec- tion 5703 of title 5’’ are substituted for 40:333(e)(3)(words after semicolon) to eliminate unnecessary words. Page 147 TITLE 40—PUBLIC BUILDINGS, PROPERTY, AND WORKS § 3708 Editorial Notes REFERENCES IN TEXT Reorganization Plan Numbered 14 of 1950, referred to in subsec. (a)(1), is Reorg. Plan No. 14 of 1950, eff. May 24, 1950, 15 F.R. 3176, 64 Stat. 1267, which is set out in the Appendix to Title 5, Government Organization and Employees. AMENDMENTS 2011—Subsec. (b)(1). Pub. L. 111–350 substituted ‘‘sec- tions 6506 and 6507 of title 41’’ for ‘‘sections 4 and 5 of the Walsh-Healey Act (41 U.S.C. 38, 39)’’. 2006—Subsec. (a)(1). Pub. L. 109–284, § 6(16), inserted ‘‘of title 5’’ after ‘‘authorized by section 553’’. Subsec. (a)(2). Pub. L. 109–284, § 6(17), struck out ‘‘of this section’’ after ‘‘subsection (d)’’. Statutory Notes and Related Subsidiaries TERMINATION OF ADVISORY COMMITTEES Advisory committees in existence on Jan. 5, 1973, to terminate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2- year period, or in the case of a committee established by the Congress, its duration is otherwise provided by law. Advisory committees established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided by law. See section 1013 of Title 5, Government Organization and Employees. § 3705. Safety programs The Secretary of Labor shall— (1) provide for the establishment and super- vision of programs for the education and training of employers and employees in the recognition, avoidance, and prevention of un- safe working conditions in employment cov- ered by this chapter; and (2) collect reports and data and consult with and advise employers as to the best means of preventing injuries. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1174.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3705 ............ 40:333(f). Pub. L. 87–581, title I, § 107(f), as added Pub. L. 91–54, § 1, Aug. 9, 1969, 83 Stat. 98. § 3706. Limitations, variations, tolerances, and exemptions The Secretary of Labor may provide reason- able limitations to, and may prescribe regula- tions allowing reasonable variations to, toler- ances from, and exemptions from, this chapter that the Secretary may find necessary and prop- er in the public interest to prevent injustice or undue hardship or to avoid serious impairment of the conduct of Federal Government business. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1174.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3706 ............ 40:331. Pub. L. 87–581, title I, § 105, Aug. 13, 1962, 76 Stat. 359. § 3707. Contractor certification or contract clause in acquisition of commercial items not required In a contract to acquire a commercial product (as defined in section 103 of title 41) or a com- mercial service (as defined in section 103a of title 41), a certification by a contractor or a con- tract clause may not be required to implement a prohibition or requirement in this chapter. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1174; Pub. L. 111–350, § 5(l)(21), Jan. 4, 2011, 124 Stat. 3852; Pub. L. 115–232, div. A, title VIII, § 836(g)(6), Aug. 13, 2018, 132 Stat. 1874.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3707 ............ 40:334. Pub. L. 87–581, title I, § 108, as added Pub. L. 103–355, title VIII, § 8301(b), Oct. 13, 1994, 108 Stat. 3396. Editorial Notes AMENDMENTS 2018—Pub. L. 115–232 substituted ‘‘a commercial prod- uct (as defined in section 103 of title 41) or a commer- cial service (as defined in section 103a of title 41)’’ for ‘‘a commercial item (as defined in section 103 of title 41)’’. 2011—Pub. L. 111–350 substituted ‘‘section 103 of title 41’’ for ‘‘section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amend- ment; Savings Provision note under section 453b of Title 6, Domestic Security. § 3708. Criminal penalties A contractor or subcontractor having a duty to employ, direct, or control a laborer or me- chanic employed in the performance of work contemplated by a contract to which this chap- ter applies that intentionally violates this chap- ter shall be fined under title 18, imprisoned for not more than six months, or both. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1174.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3708 ............ 40:332. Pub. L. 87–581, title I, § 106, Aug. 13, 1962, 76 Stat. 359. The words ‘‘shall be fined under title 18’’ are sub- stituted for ‘‘shall be deemed guilty of a misdemeanor, and for each and every such offense shall, upon convic- tion, be punished by a fine of not to exceed $1,000’’ for consistency with chapter 227 of title 18. The words ‘‘in the discretion of the court having jurisdiction thereof’’ are omitted as unnecessary.