B-145000, OCTOBER 2, 1961, 41 COMP. GEN. 213

B-145000, OCTOBER 2, 1961, 41 COMP. GEN. 213

HIGHWAYS - CONSTRUCTION - FEDERAL-AID HIGHWAY PROGRAM - CONVICT LABOR PROHIBITION A REGULATION PROHIBITING THE USE OF PRISON-MADE ITEMS AS WELL AS THE USE OF CONVICT LABOR IN THE CONSTRUCTION OF FEDERAL-AID HIGHWAYS WHICH WAS ISSUED PURSUANT TO 23 U.S.C. 114 (B), WHICH PROHIBITS ONLY THE USE OF CONVICT LABOR IN HIGHWAY CONSTRUCTION, MUST BE REGARDED AS AN ATTEMPT TO ADD A PROVISION TO AN UNAMBIGUOUS STATUTE AND, THEREFORE, TO THE EXTENT THAT THE REGULATION PROHIBITS MATERIALS MANUFACTURED OR PRODUCED BY PRISON LABOR, IT HAS NO FORCE AND EFFECT.

TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, OCTOBER 2, 1961:

BY LETTER OF FEBRUARY 2, 1961, THE THEN PRESIDENT OF THE BOARD OF COMMISSIONERS, GOVERNMENT OF THE DISTRICT OF COLUMBIA, REQUESTED OUR OPINION AS TO WHETHER THE SECRETARY OF COMMERCE MAY VALIDLY PROSCRIBE THE USE, IN CONSTRUCTION OF DISTRICT OF COLUMBIA FEDERAL-AID HIGHWAY PROJECTS, OF MATERIALS MADE IN PENAL INSTITUTIONS OF THE DISTRICT. FROM THE INFORMATION CONTAINED IN THE FORMER PRESIDENT OF THE BOARD'S LETTER, THE FACTS PERTINENT TO THE QUESTION RAISED MAY BE SUMMARIZED AS FOLLOWS:

UNDER THE PROVISIONS OF THE FEDERAL-AID HIGHWAY PROGRAM, CODIFIED IN TITLE 23 OF THE UNITED STATES CODE, THE FEDERAL GOVERNMENT PARTICIPATES IN THE COST OF CERTAIN HIGHWAYS CONSTRUCTED BY THE DISTRICT OF COLUMBIA, PUERTO RICO AND EACH OF THE 50 STATES. SUBSECTION 114 (B) OF TITLE 23 PROVIDES, WITH RESPECT TO THE CONSTRUCTION OF HIGHWAYS ELIGIBLE FOR FEDERAL PARTICIPATION, THAT:

CONVICT LABOR SHALL NOT BE USED IN SUCH CONSTRUCTION UNLESS IT IS LABOR PERFORMED BY CONVICTS WHO ARE ON PAROLE OR PROBATION.

THE SECRETARY OF COMMERCE, RELYING UPON THE AUTHORITY TO ISSUE NEEDFUL RULES AND REGULATIONS VESTED IN HIM UNDER THE PROVISIONS OF 23 U.S.C. 315, HAS ISSUED REGULATIONS PROHIBITING THE USE OF MATERIALS MADE IN PRISONS IN ADDITION TO PROHIBITING THE USE OF CONVICT LABOR IN THE CONSTRUCTION OF FEDERAL-AID HIGHWAYS. BUREAU OF PUBLIC ROADS REGULATION 1.24 (A), 23 CFR 1.24 (A), PROVIDES THAT:

* * * NO CONVICT LABOR SHALL BE EMPLOYED AND NO MATERIALS MANUFACTURED OR PRODUCED BY CONVICT LABOR SHALL BE USED IN THE CONSTRUCTION OF A PROJECT. NO CONVICT LABOR SHALL BE EMPLOYED AT THE SITE OF A PROJECT AFTER THE APPROVAL OF THE PROGRAM INCLUDING THE PROJECT AND PRIOR TO THE COMPLETION OF ITS CONSTRUCTION.

IT HAS BEEN THE PRACTICE OF THE DISTRICT OF COLUMBIA TO INCLUDE AMONG THE DISTRICT-FURNISHED MATERIALS USED ON HIGHWAY CONSTRUCTION PROJECTS A NUMBER OF MINOR ITEMS MADE AT PRISONS OPERATED BY THE DISTRICT, SUCH AS FIRE HYDRANTS, VALVES, AND METER BOXES. THESE ITEMS ARE ACTUALLY PART OF THE WATER AND SEWER SYSTEMS OF THE DISTRICT. CASTINGS FOR SUCH ITEMS HAVE BEEN STANDARDIZED THROUGHOUT THE DISTRICT AND THE PATTERNS FOR THEIR MANUFACTURE ARE OWNED BY THE DISTRICT. SUCH STANDARDIZATION IS CONSIDERED ESSENTIAL TO ECONOMICAL AND EFFICIENT WATER AND SEWER OPERATION AND STREET AND HIGHWAY MAINTENANCE. MOST OF THE CASTINGS USED ARE NOT AVAILABLE FROM COMMERCIAL SOURCES AND THE QUANTITIES INVOLVED ARE RELATIVELY SMALL--- SO SMALL, IN FACT, THAT THE PROCUREMENT OFFICER OF THE DISTRICT BELIEVES THAT FEW FOUNDRIES WOULD UNDERTAKE THEIR PRODUCTION.

ON THE BASIS OF THE STATUTE CITED--- AND THE REGULATIONS ISSUED IN FURTHERANCE THEREOF--- THE BUREAU OF PUBLIC ROADS HAS INFORMED THE DEPARTMENT OF HIGHWAYS AND TRAFFIC OF THE DISTRICT OF COLUMBIA THAT IF A PRISON-MADE ITEM IS USED IN A FEDERAL-AID HIGHWAY PROJECT, WHETHER OR NOT IT IS CHARGED INTO THE COST OF THE PROJECT, THE ENTIRE PROJECT WILL BE DISALLOWED FOR PARTICIPATING FUNDS. THE BUREAU INDICATED THAT DISALLOWANCE WILL EXTEND BOTH TO FUTURE PROJECTS AND TO THOSE PRESENTLY IN FORCE.

THE FORMER PRESIDENT OF THE BOARD CONTENDS THAT THE LANGUAGE OF THE STATUTE INVOLVED AND ITS LEGISLATIVE HISTORY CLEARLY SHOW THAT CONGRESS WAS CONCERNED ONLY WITH PROHIBITING THE EMPLOYMENT OF CONVICTS IN THE CONSTRUCTION OF HIGHWAYS AND NOT WITH THE USE OF PRISON-MADE GOODS. CONCLUDES, THEREFORE, THAT THE REGULATION PROHIBITING THE USE OF PRISON MADE GOODS ATTEMPTS TO ENLARGE THE SCOPE OF THE STATUTORY PROSCRIPTION AND, THE SECRETARY BEING CLEARLY WITHOUT AUTHORITY TO EFFECT SUBSTANTIVE CHANGES IN THE STATUTE, THAT THE REGULATION IN QUESTION IS INVALID. THE DEPARTMENT OF COMMERCE, WHILE QUESTIONING THE FORMER PRESIDENT OF THE BOARD'S INTERPRETATION OF THE STATUTE, TAKES THE VIEW THAT, IN ANY EVENT, THE REGULATION, AND PRIOR SIMILAR ONES, PROHIBITING THE USE OF PRISON-MADE GOODS ARE OF SUCH LONG STANDING AND THE STATUTORY PROVISIONS IN QUESTION WERE REENACTED SO MANY TIMES IN THE FACE OF THESE REGULATORY PROVISIONS, THAT THE REGULATION AND THE STATUTE MUST NOW BE VIEWED AS BEING COMPATIBLE.

IN OUR OPINION, THE STATUTORY PROHIBITION AGAINST THE USE OF CONVICT LABOR IN THE CONSTRUCTION OF FEDERAL-AID HIGHWAYS DOES NOT LIMIT THE USE OF MATERIALS OF THE TYPE HERE INVOLVED MANUFACTURED OR PRODUCED UNDER PRISON INDUSTRY PROGRAMS.

THE COMPLETE TEXT OF 23 U.S.C. 114 IS AS FOLLOWS:

(A) THE CONSTRUCTION OF ANY HIGHWAYS OR PORTIONS OF HIGHWAYS LOCATED ON A FEDERAL-AID SYSTEM SHALL BE UNDERTAKEN BY THE RESPECTIVE STATE HIGHWAY DEPARTMENTS OR UNDER THEIR DIRECT SUPERVISION. EXCEPT AS PROVIDED IN SECTION 117 OF THIS TITLE SUCH CONSTRUCTION SHALL BE SUBJECT TO THE INSPECTION AND APPROVAL OF THE SECRETARY. THE CONSTRUCTION WORK AND LABOR IN EACH STATE SHALL BE PERFORMED UNDER THE DIRECT SUPERVISION OF THE STATE HIGHWAY DEPARTMENT AND IN ACCORDANCE WITH THE LAWS OF THAT STATE AND APPLICABLE FEDERAL LAWS. CONSTRUCTION MAY BE BEGUN AS SOON AS FUNDS ARE AVAILABLE FOR EXPENDITURE PURSUANT TO SUBSECTION (A) OF SECTION 118 OF THIS TITLE.

(B) CONVICT LABOR SHALL NOT BE USED IN SUCH CONSTRUCTION UNLESS IT IS LABOR PERFORMED BY CONVICTS WHO ARE ON PAROLE OR PROBATION.

IN REQUIRING CONSTRUCTION WORK AND LABOR TO BE PERFORMED UNDER THE DIRECT SUPERVISION OF THE STATE HIGHWAY DEPARTMENT, WE THINK IT APPARENT THAT THE STATUTE IS REFERRING TO THE PROCESS OF BUILDING THE HIGHWAY ITSELF AND THE LABOR REQUIRED THEREFOR. IT WOULD BE UNREALISTIC TO READ SUBSECTION 114 (A) AS REQUIRING THE STATE HIGHWAY DEPARTMENT TO DIRECTLY SUPERVISE THE LABOR PERFORMED IN PRODUCING ANY FABRICATED ITEM SUCH AS HYDRANTS, VALVES, OR METER BOXES THAT MIGHT BE USED IN CONNECTION WITH THE CONSTRUCTION OF A HIGHWAY. AND SUBSECTION 114 (B), IN STIPULATING A CLASS OF LABOR WHICH MAY NOT BE USED IN SUCH CONSTRUCTION, MUST LOGICALLY BE CONSTRUED AS REFERRING LIKEWISE ONLY TO THE ACTUAL BUILDING OF THE HIGHWAY. REGULATION 1.24 (A) ITSELF RECOGNIZES THIS DIFFERENCE IN THAT IT SPECIFICALLY DISTINGUISHES BETWEEN CONVICT LABOR AND MATERIALS MANUFACTURED OR PRODUCED BY CONVICT LABOR.

MOREOVER, AN EXAMINATION OF THE PERTINENT LEGISLATIVE HISTORY CORROBORATES THE MEANING DERIVED SOLELY FROM THE LANGUAGE OF THE STATUTE. THE PROHIBITION AGAINST THE USE OF CONVICT LABOR IN THE CONSTRUCTION OF FEDERAL-AID HIGHWAYS MAY BE TRACED BACK TO THE ACT OF JULY 7, 1932, MAKING APPROPRIATIONS FOR THE DEPARTMENT OF AGRICULTURE FOR THE FISCAL YEAR ENDING JUNE 30, 1933, 47 STAT. 609, 634. IN THAT ACT THE FOLLOWING PROVISO WAS ATTACHED TO APPROPRIATIONS FOR THE FEDERAL-AID HIGHWAY SYSTEM:

PROVIDED, THAT NONE OF THE MONEY HEREIN APPROPRIATED SHALL BE PAID TO ANY STATE ON ACCOUNT OF ANY PROJECT ON WHICH CONVICT LABOR SHALL BE DIRECTLY EMPLOYED, EXCEPT THIS PROVISION SHALL NOT APPLY TO CONVICT LABOR PERFORMED BY CONVICTS ON PAROLE OR PROBATION.

THE THEN DIRECTOR OF THE BUREAU OF PUBLIC ROADS, TESTIFYING BEFORE THE SUBCOMMITTEE OF THE SENATE COMMITTEE ON APPROPRIATIONS, 72D CONGRESS, ST SESSION, ON H.R. 7912, STATED, AT PAGE 133 OF THE PRINTED HEARINGS, WITH RESPECT TO THE CONVICT LABOR PROVISION THEREIN--- WHICH WAS IDENTICAL TO THE PROVISION ENACTED--- THAT:

* * * THIS BILL ONLY GOES TO THE EXPENDITURE OF FEDERAL-AID ROAD FUNDS IN THE EMPLOYMENT OF CONVICTS DIRECTLY ON THE ROADS. SUCH OPERATIONS AS WERE SPOKEN ABOUT--- THE MAKING OF SIGNS, AND SO FORTH, AS A PRISON INDUSTRY--- WOULD NOT BE INTERFERED WITH.

NORTH CAROLINA MAKES IN ITS PRISONS ITS OWN DRAINTILE THAT ARE USED ON THE ROADS. THESE INDUSTRIES WOULD NOT BE INTERFERED WITH BY THE LANGUAGE OF THIS BILL. IT WOULD ONLY MEAN THAT CONVICTS COULD NOT BE USED DIRECTLY ON ROAD PROJECTS PAID FOR IN PART WITH FEDERAL FUNDS * * *.

AND THERE IS NO BASIS UPON WHICH TO QUESTION THE DIRECTOR'S INTERPRETATION OF THE PROHIBITION. INDEED, SUCH INTERPRETATION APPEARS MANDATORY, IN VIEW OF THE WORD "DIRECTLY" USED IN THE PROVISO. DURING THE PERIOD FROM 1934 THROUGH 1956 EACH ANNUAL ACT APPROPRIATING FUNDS FOR FEDERAL-AID HIGHWAY CONSTRUCTION CONTAINED THIS CONVICT LABOR PROVISO EXCEPT THAT THE WORD "DIRECTLY" APPEARING THEREIN WAS DELETED. BUT THE LEGISLATIVE HISTORY OF THE PROHIBITION SHOWS THAT DELETION OF THE WORD "DIRECTLY" WAS NOT INTENDED TO ALTER THE PURPOSE OR MEANING OF THE STATUTE AS EXPRESSED IN THE HEARING CITED BUT, RATHER, WAS FOR THE SOLE PURPOSE OF CLARIFYING THE STATUTE WITH RESPECT TO THE USE OF STONE CRUSHED BY CONVICT LABOR. CONGRESSMAN LAGUARDIA, ON DECEMBER 30, 1932, OFFERED AN AMENDMENT TO H.R. 13872, 72D CONGRESS, 2D SESSION, TO DELETE THE WORD "DIRECTLY," WHICH AMENDMENT WAS ENACTED AS PART OF THE APPROPRIATION ACT OF MARCH 3, 1933, 47 STAT. 1432, 1456. IN EXPLAINING THE PURPOSE FOR HIS AMENDMENT, CONGRESSMAN LAGUARDIA, WHO WAS RESPONSIBLE FOR THE CONVICT LABOR PROHIBITION AS ORIGINALLY ENACTED THE PRECEDING YEAR, MADE THE FOLLOWING STATEMENT:

MR. CHAIRMAN, WHEN II OFFERED AN AMENDMENT ON THE APPROPRIATION BILL LAST YEAR AND THE YEAR BEFORE, PLACING A LIMITATION ON THE EXPENDITURE OF THIS APPROPRIATION SO THAT CONVICT LABOR COULD NOT BE EMPLOYED, THERE WAS SOME APPREHENSION THAT THE STATES COULD NOT ADJUST THEMSELVES. WE FOUND THAT EVERY STATE HAS ADJUSTED ITSELF TO THE EMPLOYMENT OF FREE LABOR, WITH THE EXCEPTION OF TWO STATES, WHERE CONVICT LABORERS ARE USED TO THE EXTENT OF THE PURCHASE OF STONE THAT HAD BEEN CRUSHED BY THE CONVICTS.

I AM SURE THERE IS NO INTENTION ON THE PART OF THESE TWO STATES TO VIOLATE THE LIMITATIONS ON THE APPROPRIATION BILL, AND THE MISAPPREHENSION HAS BEEN CAUSED BY REASON OF THE WORD "DIRECTLY" USED IN THE LIMITATION. I HAVE A LETTER FROM THE AMERICAN FEDERATION OF LABOR, DATED DECEMBER 19, 1932. (76 CONG. REC. 1131, 1932).

THE CONVICT LABOR PROHIBITION AS ORIGINALLY ENACTED AND ITS SUBSEQUENT AMENDMENT TOGETHER WITH THE ENTIRE LEGISLATIVE HISTORY ON THESE PROVISIONS CLEARLY ESTABLISH THAT THE PROHIBITION WAS DIRECTED TOWARD THE USE OF CONVICT LABOR IN UNSKILLED FIELDS, PRIMARILY GRADING WORK, AND THAT PRISON INDUSTRIES WERE NOT TO BE AFFECTED. THE AMENDMENT DELETING THE WORD "DIRECTLY" WAS MERELY TO ASSURE THAT THE ESSENTIAL PURPOSE OF THE STATUTE WOULD NOT BE EVADED IN THE CASE OF LABOR USED TO CRUSH STONE--- A MATERIAL USED SUBSTANTIALLY IN ROAD BUILDING--- BY THE EXPEDIENT OF PERFORMING THE LABOR OFF THE SITE OF THE WORK.

THE REGULATORY PROHIBITION AGAINST THE USE OF PRISON-MADE GOODS IN FEDERAL-AID HIGHWAYS WAS FIRST PROMULGATED IN 1935. SEE REGULATION 10, SECTION 1, OF THE RULES AND REGULATIONS OF THE SECRETARY OF AGRICULTURE ISSUED PURSUANT TO AUTHORITY CONTAINED IN SECTION 18 OF THE FEDERAL HIGHWAY ACT, 42 STAT. 216, 23 U.S.C. 19. THE REGULATORY PROHIBITION HAS BEEN CONSISTENTLY IN EFFECT THROUGHOUT THE PERIOD FROM 1935 TO DATE DURING WHICH PERIOD THE STATUTORY PROHIBITION WAS REPEATEDLY ENACTED IN SUCCEEDING APPROPRIATION ACTS AND FINALLY CODIFIED AS SUBSECTION 114 (B) OF TITLE 23, U.S.C. BY PUBLIC LAW 85-767, APPROVED AUGUST 27, 1958, 72 STAT. 885.

SINCE IN OUR OPINION THE REGULATION ENLARGES THE SCOPE OF THE STATUTE AS IT WAS ORIGINALLY INTENDED AND IN VIEW OF THE LONG HISTORY OF THE REGULATION, TWO QUESTIONS MUST BE CONSIDERED IN DETERMINING THE VALIDITY OF THE REGULATION:

1. IS THE AUTHORITY UNDER WHICH THE SECRETARY HAS ISSUED THE REGULATION IN QUESTION SUFFICIENTLY BROAD TO EMBRACE THE REGULATION WHICH, WHILE NOT IN DIRECT CONFLICT WITH THE STATUTE BEING ADMINISTERED, COVERS A MATTER WHICH THE STATUTE ITSELF WAS NOT INTENDED TO REACH?

2. NOTWITHSTANDING THAT THE STATUTE, ORIGINALLY, MAY NOT HAVE CONTEMPLATED PROHIBITING THE USE OF PRISON-MADE GOODS, DOES THE FACT ALONE THAT THE REGULATION WAS IN EFFECT DURING THE PERIOD OF CONTINUED RE- ENACTMENT OF THE STATUTORY PROHIBITION EACH YEAR FOR 23 YEARS AND ITS ULTIMATE CODIFICATION INTO PERMANENT LAW OPERATE TO ALTER THE MEANING OF THE STATUTE?

WITH RESPECT TO THE FIRST QUESTION, IT MAY BE STATED GENERALLY THAT," SINCE THE POWER TO MAKE REGULATIONS IS ADMINISTRATIVE IN NATURE, LEGISLATION MAY NOT BE ENACTED UNDER THE GUISE OF ITS EXERCISE BY ISSUING A "REGULATION" WHICH IS OUT OF HARMONY WITH, OR WHICH ALTERS, EXTENDS, OR LIMITS, THE STATUTE BEING ADMINISTERED, OR WHICH IS INCONSISTENT WITH THE EXPRESSION OF THE LAWMAKERS' INTENT IN OTHER STATUTES. THE ADMINISTRATIVE OFFICER'S POWER MUST BE EXERCISED WITHIN THE FRAMEWORK OF THE PROVISION BESTOWING REGULATORY POWERS ON HIM AND THE POLICY OF THE STATUTE WHICH HE ADMINISTERS. HE CANNOT INITIATE POLICY IN THE TRUE SENSE, BUT MUST FUNDAMENTALLY PURSUE A POLICY PREDETERMINED BY THE SAME POWER FROM WHICH HE DERIVES HIS AUTHORITY.' 42 AM. JR., PUBLIC ADMINISTRATIVE LAW, SECTION 53. SEE ALSO 18 COMP. GEN. 285; 20 ID. 410; 36 ID. 111. THE CONTROLLING RULE IS STATED IN THE CASE OF MANHATTAN GENERAL EQUIPMENT CO. V. COMMISSIONER OF INTERNAL REVENUE, 297 U.S. 129, 134 AS FOLLOWS:

THE POWER OF AN ADMINISTRATIVE OFFICER OR BOARD TO ADMINISTER A FEDERAL STATUTE AND TO PRESCRIBE RULES AND REGULATIONS TO THAT END IS NOT THE POWER TO MAKE LAW--- FOR NO SUCH POWER CAN BE DELEGATED BY CONGRESS--- BUT THE POWER TO ADOPT REGULATIONS TO CARRY INTO EFFECT THE WILL OF CONGRESS AS EXPRESSED BY THE STATUTE. A REGULATION WHICH DOES NOT DO THIS, BUT OPERATES TO CREATE A RULE OUT OF HARMONY WITH THE STATUTE, IS A MERE NULLITY. THE COURT IN UNITED STATES V. MAXWELL, 278 F.2D 206, 211, REFERRING TO THE MANHATTAN CASE STATES THAT WHILE REGULATIONS AUTHORIZED BY AND CONSISTENT WITH STATUTES ARE BINDING AND REGULATIONS ARE ENTITLED TO CONSIDERATION IN CONSTRUING AN AMBIGUOUS STATUTE, A REGULATION TO THE EXTENT IT IS IN DIRECT VARIANCE WITH AN UNAMBIGUOUS STATUTORY PROVISION IS CLEARLY VOID. SEE ALSO SEAGRAVE V. UNITED STATES, 131 CT.1CL. 790 AND AUTHORITIES CITED THEREIN AT PAGE 795.

IN OUR OPINION, THE STATUTORY PROHIBITION AGAINST THE USE OF CONVICT LABOR BUT NOT AGAINST THE USE OF PRISON-MADE GOODS--- WHETHER THIS INTERPRETATION OF THE STATUTE BE DERIVED FROM ITS PLAIN WORDING OR ITS LEGISLATIVE HISTORY--- CONSTITUTES A POLICY DETERMINATION WITH RESPECT TO THE MATTER WHICH CANNOT PROPERLY BE ALTERED BY ADMINISTRATIVE REGULATION; AND UNDER THE ESTABLISHED RULE, ANY ATTEMPT TO DO SO MUST FAIL. AND IT FOLLOWS, IN THE ABSENCE OF ANY INDICATION THAT A CHANGE IN MEANING WAS INTENDED BY THE SUCCEEDING CONGRESSES WHICH RE-ENACTED THE STATUTORY PROVISION OVER A PERIOD OF YEARS, THAT THE ORIGINAL POLICY SET FORTH IN THE STATUTE COULD NOT BE MODIFIED BY A NULLITY. WE, OF COURSE, RECOGNIZE THE FAMILIAR PRINCIPLE THAT IN THE INTERPRETATION OF A DOUBTFUL OR AMBIGUOUS STATUTE, THE LONG CONTINUED AND UNIFORM PRACTICE OF THE AUTHORITIES CHARGED WITH ITS ADMINISTRATION IS ENTITLED TO GREAT WEIGHT AND WILL NOT BE DISTURBED EXCEPT FOR COGENT REASONS. IN MASSACHUSETTS MUTUAL LIFE INS. CO. V. UNITED STATES, 288 U.S. 269, 273, THE COURT SAID:

THIS ACTION (OF CONGRESS IN REENACTING A STATUTE) WAS TAKEN WITH KNOWLEDGE OF THE CONSTRUCTION PLACED UPON THE SECTION BY THE OFFICIAL CHARGED WITH ITS ADMINISTRATION. IF THE LEGISLATIVE BODY HAD CONSIDERED THE TREASURY INTERPRETATION ERRONEOUS IT WOULD HAVE AMENDED THE SECTION. ITS FAILURE TO DO SO REQUIRES THE CONCLUSION THAT THE REGULATION WAS NOT INCONSISTENT WITH THE INTENT OF THE STATUTE (CITATIONS) UNLESS, PERHAPS, THE LANGUAGE OF THE ACT IS UNAMBIGUOUS AND THE REGULATION CLEARLY INCONSISTENT WITH IT. ( ITALICS SUPPLIED.)

IN THE INSTANT CASE, WE FIND NOTHING IN THE RECORD TO SUPPORT THE CONTENTION THAT CONGRESS, IN RE-ENACTING THE CONVICT LABOR PROHIBITION, CONSIDERED THE ADMINISTRATIVE REGULATION AND ITS EFFECT. ALSO, THE POLICY SET FORTH IN THE REGULATION BEING INCONSISTENT WITH THE POLICY ENUNCIATED BY THE STATUTE, THE EXCEPTION CONTAINED IN THE RULE STATED IN THE MASSACHUSETTS MUTUAL LIFE CASE, RATHER THAN THE RULE ITSELF, IS FOR APPLICATION. CONGRESS HAVING CLEARLY AND SPECIFICALLY DECLARED THAT THE USE OF CONVICT LABOR IN THE CONSTRUCTION OF FEDERAL-AID HIGHWAYS IS PROHIBITED, THE SECRETARY OF COMMERCE IS WITHOUT POWER BY REGULATORY AMENDMENT TO ADD A PROVISION THAT MATERIALS MANUFACTURED OR PRODUCED BY PRISON LABOR MAY NOT BE USED. SEE KOSHLAND V. HELVERING, 298 U.S. 441, 447 (1936); COMMISSIONER OF INTERNAL REVENUE V. GLENSHAW GLASS CO., 348 U.S. 426, 431 (1955); UNITED STATES V. CALAMARO, 354 U.S. 351, 359 (1957); COMMISSIONER OF INTERNAL REVENUE V. ACKER, 361 U.S. 87, 93 (1959).

ACCORDINGLY, IT IS OUR VIEW THAT SECTION 1.24 (A) OF THE REGULATIONS FOR THE ADMINISTRATION OF FEDERAL AID FOR HIGHWAYS ( REVISED) HAS NO FORCE OR EFFECT INSOFAR AS IT IS INTENDED TO PROHIBIT THE USE IN HIGHWAY PROJECTS OF MATERIALS OF THE TYPE HERE INVOLVED MANUFACTURED OR PRODUCED BY CONVICT LABOR IN PENAL INSTITUTIONS.