June 24, 2010 CODE OF FEDERAL REGULATIONS 29 Parts 500 to 899 Revised as of July 1, 2010 Labor Containing a codification of documents of general applicability and future effect As of July 1, 2010 With Ancillaries

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 Table of Contents Page Explanation v Title 29: SUBTITLE B—Regulations Relating to Labor (Continued) Chapter V—Wage and Hour Division, Department of Labor 5 Finding Aids: Table of CFR Titles and Chapters 885 Alphabetical List of Agencies Appearing in the CFR 905 List of CFR Sections Affected 915

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July 1, 2010.

THIS TITLE

Title 29—Labor is composed of nine volumes. The parts in these volumes are arranged in the following order: parts 0-99, parts 100-499, parts 500-899, parts 900-1899, part 1900-§ 1910.999, part 1910.1000-end of part 1910, parts 1911-1925, part 1926, and part 1927 to end. The contents of these volumes represent all current regulations codified under this title as of July 1, 2010.

The OMB control numbers for title 29 CFR part 1910 appear in § 1910.8. For the convenience of the user, § 1910.8 appears in the Finding Aids section of the volume containing § 1910.1000 to the end.

Subject indexes appear following the occupational safety and health standards (part 1910), and following the safety and health regulations for: Longshoring (part 1918), Gear Certification (part 1919), and Construction (part 1926).

For this volume, Bonnie Fritts was Chief Editor. The Code of Federal Regulations publication program is under the direction of Michael L. White, assisted by Ann Worley.

 <LRH>29 CFR Ch. V (7-1-10 Edition)</LRH> <RRH>Wage and Hour Division, Labor</RRH> <CFRTITLE> <TITLEHD> <PRTPAGE P="1"/> <HD SOURCE="HED">Title 29—Labor</HD> <P>(This book contains parts 500 to 899)</P> </TITLEHD> <CFRTOC> <SUBTI> <HD SOURCE="HED">SUBTITLE B—<E T="04">Regulations Relating to Labor (Continued)</E> </HD> </SUBTI> <PTHD>Part</PTHD> <CHAPTI> <SUBJECT> <E T="04">chapter v</E>—Wage and Hour Division, Department of Labor</SUBJECT> <PG>500</PG> </CHAPTI> </CFRTOC> </CFRTITLE> <SUBTITLE> <PRTPAGE P="3"/> <HD SOURCE="HED">Subtitle B—Regulations Relating to Labor (Continued)</HD> <CHAPTER> <TOC> <TOCHD> <PRTPAGE P="5"/> <HD SOURCE="HED">CHAPTER V—WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR</HD> </TOCHD> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER A—REGULATIONS</HD> </SUBCHAP> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>500</PT> <SUBJECT>Migrant and seasonal agricultural worker protection</SUBJECT> <PG>9</PG> <PT>501</PT> <SUBJECT>Enforcement of contractual obligations for temporary alien agricultural workers admitted under section 218 of the Immigration and Nationality Act</SUBJECT> <PG>53</PG> <PT>502</PT> <SUBJECT>Enforcement of contractual obligations for temporary alien agricultural workers admitted under section 218 of the Immigration and Nationality Act (suspended 6-29-2009)</SUBJECT> <PG>68</PG> <PT>504</PT> <SUBJECT>Attestations by facilities using nonimmigrant aliens as registered nurses</SUBJECT> <PG>84</PG> <PT>505</PT> <SUBJECT>Labor standards on projects or productions assisted by grants from the National Endowments for the Arts and Humanities</SUBJECT> <PG>84</PG> <PT>506</PT> <SUBJECT>Attestations by employers using alien crewmembers for longshore activities in U.S. ports</SUBJECT> <PG>89</PG> <PT>507</PT> <SUBJECT>Labor condition applications and requirements for employers using nonimmigrants on H-1B specialty visas in specialty occupations and as fashion models</SUBJECT> <PG>89</PG> <PT>508</PT> <SUBJECT>Attestations filed by employers utilizing F-1 students for off-campus work</SUBJECT> <PG>89</PG> <PT>510</PT> <SUBJECT>Implementation of the minimum wage provisions of the 1989 amendments to the Fair Labor Standards Act in Puerto Rico</SUBJECT> <PG>89</PG> <PT>511</PT> <SUBJECT>Wage order procedure for American Samoa</SUBJECT> <PG>111</PG> <PT>515</PT> <SUBJECT>Utilization of State agencies for investigations and inspections</SUBJECT> <PG>118</PG> <PT>516</PT> <SUBJECT>Records to be kept by employers</SUBJECT> <PG>120</PG> <PT>519</PT> <SUBJECT>Employment of full-time students at subminimum wages</SUBJECT> <PG>133<PRTPAGE P="6"/> </PG> <PT>520</PT> <SUBJECT>Employment under special certificate of messengers, learners (including student-learners), and apprentices</SUBJECT> <PG>144</PG> <PT>521-523</PT> <RESERVED>[Reserved]</RESERVED> <PT>525</PT> <SUBJECT>Employment of workers with disabilities under special certificates</SUBJECT> <PG>156</PG> <PT>527</PT> <RESERVED>[Reserved]</RESERVED> <PT>528</PT> <SUBJECT>Annulment or withdrawal of certificates for the employment of student-learners, apprentices, learners, messengers, handicapped persons, student-workers, and full-time students in agriculture or in retail or service establishments at special minimum wage rates</SUBJECT> <PG>167</PG> <PT>530</PT> <SUBJECT>Employment of homeworkers in certain industries</SUBJECT> <PG>169</PG> <PT>531</PT> <SUBJECT>Wage payments under the Fair Labor Standards Act of 1938</SUBJECT> <PG>181</PG> <PT>536</PT> <SUBJECT>Area of production</SUBJECT> <PG>194</PG> <PT>541</PT> <SUBJECT>Defining and delimiting the exemptions for executive, administrative, professional, computer and outside sales employees</SUBJECT> <PG>195</PG> <PT>547</PT> <SUBJECT>Requirements of a “Bona fide thrift or savings plan”</SUBJECT> <PG>220</PG> <PT>548</PT> <SUBJECT>Authorization of established basic rates for computing overtime pay</SUBJECT> <PG>221</PG> <PT>549</PT> <SUBJECT>Requirements of a “bona fide profit-sharing plan or trust”</SUBJECT> <PG>236</PG> <PT>550</PT> <SUBJECT>Defining and delimiting the term “talent fees”</SUBJECT> <PG>238</PG> <PT>551</PT> <SUBJECT>Local delivery drivers and helpers; wage payment plans</SUBJECT> <PG>239</PG> <PT>552</PT> <SUBJECT>Application of the Fair Labor Standards Act to domestic service</SUBJECT> <PG>243</PG> <PT>553</PT> <SUBJECT>Application of the Fair Labor Standards Act to employees of State and local governments</SUBJECT> <PG>249</PG> <PT>570</PT> <SUBJECT>Child labor regulations, orders and statements of interpretation</SUBJECT> <PG>272</PG> <PT>575</PT> <SUBJECT>Waiver of child labor provisions for agricultural employment of 10 and 11 year old minors in hand harvesting of short season crops</SUBJECT> <PG>331</PG> <PT>578</PT> <SUBJECT>Minimum wage and overtime violations—civil money penalties</SUBJECT> <PG>337</PG> <PT>579</PT> <SUBJECT>Child labor violations—civil money penalties</SUBJECT> <PG>338</PG> <PT>580</PT> <SUBJECT>Civil money penalties—procedures for assessing and contesting penalties</SUBJECT> <PG>345<PRTPAGE P="7"/> </PG> <PT>697</PT> <SUBJECT>Industries in American Samoa</SUBJECT> <PG>349</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER B—STATEMENTS OF GENERAL POLICY OR INTERPRETATION NOT DIRECTLY RELATED TO REGULATIONS</HD> </SUBCHAP> <CHAPTI> <PT>775</PT> <SUBJECT>General</SUBJECT> <PG>353</PG> <PT>776</PT> <SUBJECT>Interpretative bulletin on the general coverage of the wage and hours provisions of the Fair Labor Standards Act of 1938</SUBJECT> <PG>353</PG> <PT>778</PT> <SUBJECT>Overtime compensation</SUBJECT> <PG>392</PG> <PT>779</PT> <SUBJECT>The Fair Labor Standards Act as applied to retailers of goods or services</SUBJECT> <PG>447</PG> <PT>780</PT> <SUBJECT>Exemptions applicable to agriculture, processing of agricultural commodities, and related subjects under the Fair Labor Standards Act</SUBJECT> <PG>549</PG> <PT>782</PT> <SUBJECT>Exemption from maximum hours provisions for certain employees of motor carriers</SUBJECT> <PG>623</PG> <PT>783</PT> <SUBJECT>Application of the Fair Labor Standards Act to employees employed as seamen</SUBJECT> <PG>639</PG> <PT>784</PT> <SUBJECT>Provisions of the Fair Labor Standards Act applicable to fishing and operations on aquatic products</SUBJECT> <PG>655</PG> <PT>785</PT> <SUBJECT>Hours worked</SUBJECT> <PG>681</PG> <PT>786</PT> <SUBJECT>Miscellaneous exemptions</SUBJECT> <PG>693</PG> <PT>788</PT> <SUBJECT>Forestry or logging operations in which not more than eight employees are employed</SUBJECT> <PG>694</PG> <PT>789</PT> <SUBJECT>General statement on the provisions of section 12(a) and section 15(a)(1) of the Fair Labor Standards Act of 1938, relating to written assurances</SUBJECT> <PG>699</PG> <PT>790</PT> <SUBJECT>General statement as to the effect of the Portal-to-Portal Act of 1947 on the Fair Labor Standards Act of 1938</SUBJECT> <PG>703</PG> <PT>791</PT> <SUBJECT>Joint employment relationship under Fair Labor Standards Act of 1938</SUBJECT> <PG>728</PG> <PT>793</PT> <SUBJECT>Exemption of certain radio and television station employees from overtime pay requirements under section 13(b)(9) of the Fair Labor Standards Act</SUBJECT> <PG>730</PG> <PT>794</PT> <SUBJECT>Partial overtime exemption for employees of wholesale or bulk petroleum distributors under section 7(b)(3) of the Fair Labor Standards Act</SUBJECT> <PG>735</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER C—OTHER LAWS</HD> </SUBCHAP> <CHAPTI> <PT>801</PT> <SUBJECT>Application of the Employee Polygraph Protection Act of 1988</SUBJECT> <PG>755<PRTPAGE P="8"/> </PG> <PT>825</PT> <SUBJECT>The Family and Medical Leave Act of 1993</SUBJECT> <PG>784</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER D—GARNISHMENT OF EARNINGS</HD> </SUBCHAP> <CHAPTI> <PT>870</PT> <SUBJECT>Restriction on garnishment</SUBJECT> <PG>876</PG> <PT>871-899</PT> <RESERVED>[Reserved]</RESERVED> </CHAPTI> </TOC> <SUBCHAP TYPE="N"> <PRTPAGE P="9"/> <HD SOURCE="HED">SUBCHAPTER A—REGULATIONS</HD> <PART> <EAR>Pt. 500</EAR> <HD SOURCE="HED">PART 500—MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>500.0</SECTNO> <SUBJECT>Introduction.</SUBJECT> <SECTNO>500.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>500.2</SECTNO> <SUBJECT>Compliance with State laws and regulations.</SUBJECT> <SECTNO>500.3</SECTNO> <SUBJECT>Effective date of the Act; transition period; repeal of the Farm Labor Contractor Registration Act.</SUBJECT> <SECTNO>500.4</SECTNO> <SUBJECT>Effect of prior judgments and final orders obtained under the Farm Labor Contractor Registration Act.</SUBJECT> <SECTNO>500.5</SECTNO> <SUBJECT>Filing of applications, notices and documents.</SUBJECT> <SECTNO>500.6</SECTNO> <SUBJECT>Accuracy of information, statements and data.</SUBJECT> <SECTNO>500.7</SECTNO> <SUBJECT>Investigation authority of the Secretary.</SUBJECT> <SECTNO>500.8</SECTNO> <SUBJECT>Prohibition on interference with Department of Labor officials.</SUBJECT> <SECTNO>500.9</SECTNO> <SUBJECT>Discrimination prohibited.</SUBJECT> <SECTNO>500.10</SECTNO> <SUBJECT>Waiver of rights prohibited.</SUBJECT> <SECTNO>500.20</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SUBJGRP> <HD SOURCE="HED">Applicability of the Act: Exemptions</HD> <SECTNO>500.30</SECTNO> <SUBJECT>Persons not subject to the Act.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Registration of Farm Labor Contractors and Employees of Farm Labor Contractors Engaged in Farm Labor Contracting Activities</HD> <SUBJGRP> <HD SOURCE="HED">Registration Requirements: General</HD> <SECTNO>500.40</SECTNO> <SUBJECT>Registration in general.</SUBJECT> <SECTNO>500.41</SECTNO> <SUBJECT>Farm labor contractor is responsible for actions of his farm labor contractor employee.</SUBJECT> <SECTNO>500.42</SECTNO> <SUBJECT>Certificate of Registration to be carried and exhibited.</SUBJECT> <SECTNO>500.43</SECTNO> <SUBJECT>Effect of failure to produce certificate.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Applications and Renewal of Farm Labor Contractor and Farm Labor Contractor Employee Certificates</HD> <SECTNO>500.44</SECTNO> <SUBJECT>Form of application.</SUBJECT> <SECTNO>500.45</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <SECTNO>500.46</SECTNO> <SUBJECT>Filing an application.</SUBJECT> <SECTNO>500.47</SECTNO> <SUBJECT>Place for filing application.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Action on Application</HD> <SECTNO>500.48</SECTNO> <SUBJECT>Issuance of certificate.</SUBJECT> <SECTNO>500.50</SECTNO> <SUBJECT>Duration of certificate.</SUBJECT> <SECTNO>500.51</SECTNO> <SUBJECT>Refusal to issue or to renew, or suspension or revocation of certificate.</SUBJECT> <SECTNO>500.52</SECTNO> <SUBJECT>Right to hearing.</SUBJECT> <SECTNO>500.53</SECTNO> <SUBJECT>Nontransfer of certificate.</SUBJECT> <SECTNO>500.54</SECTNO> <SUBJECT>Change of address.</SUBJECT> <SECTNO>500.55</SECTNO> <SUBJECT>Changes to or amendments of certificate authority.</SUBJECT> <SECTNO>500.56</SECTNO> <SUBJECT>Replacement of Certificate of Registration or Farm Labor Contractor Employee Certificate.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Additional Obligations of Farm Labor Contractors and Farm Labor Contractor Employees</HD> <SECTNO>500.60</SECTNO> <SUBJECT>Farm labor contractors' recruitment, contractual and general obligations.</SUBJECT> <SECTNO>500.61</SECTNO> <SUBJECT>Farm Labor contractors must comply with all worker protections and all other statutory provisions.</SUBJECT> <SECTNO>500.62</SECTNO> <SUBJECT>Obligations of a person holding a valid Farm Labor Contractor Employee Certificate of Registration.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Worker Protections</HD> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTNO>500.70</SECTNO> <SUBJECT>Scope of worker protections.</SUBJECT> <SECTNO>500.71</SECTNO> <SUBJECT>Utilization of only registered farm labor contractors.</SUBJECT> <SECTNO>500.72</SECTNO> <SUBJECT>Agreements with workers.</SUBJECT> <SECTNO>500.73</SECTNO> <SUBJECT>Required purchase of goods or services solely from any person prohibited.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Recruiting, Hiring and Providing Information to Migrant Agricultural Workers</HD> <SECTNO>500.75</SECTNO> <SUBJECT>Disclosure of information.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hiring and Providing Information to Seasonal Agricultural Workers</HD> <SECTNO>500.76</SECTNO> <SUBJECT>Disclosure of information.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Employment Information Furnished</HD> <SECTNO>500.77</SECTNO> <SUBJECT>Accuracy of information furnished.</SUBJECT> <SECTNO>500.78</SECTNO> <SUBJECT>Information in foreign language.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Wages and Payroll Standards</HD> <SECTNO>500.80</SECTNO> <SUBJECT>Payroll records required.</SUBJECT> <SECTNO>500.81</SECTNO> <SUBJECT>Payment of wages when due.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Motor Vehicle Safety and Insurance for Transportation of Migrant and Seasonal Agricultural Workers, Housing Safety and Health for Migrant Workers</HD> <SUBJGRP> <HD SOURCE="HED">Motor Vehicle Safety</HD> <SECTNO>500.100</SECTNO> <SUBJECT>Vehicle safety obligations.</SUBJECT> <SECTNO>500.101</SECTNO> <SUBJECT>Promulgation and adoption of vehicle standards.</SUBJECT> <SECTNO>500.102</SECTNO> <SUBJECT>Applicability of vehicle safety standards.</SUBJECT> <SECTNO>500.103</SECTNO> <SUBJECT>Activities not subject to vehicle safety standards.<PRTPAGE P="10"/> </SUBJECT> <SECTNO>500.104</SECTNO> <SUBJECT>Department of Labor standards for passenger automobiles and station wagons and transportation of seventy-five miles or less.</SUBJECT> <SECTNO>500.105</SECTNO> <SUBJECT>DOT standards adopted by the Secretary.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Insurance</HD> <SECTNO>500.120</SECTNO> <SUBJECT>Insurance policy or liability bond is required for each vehicle used to transport any migrant or seasonal agricultural worker.</SUBJECT> <SECTNO>500.121</SECTNO> <SUBJECT>Coverage and level of insurance required.</SUBJECT> <SECTNO>500.122</SECTNO> <SUBJECT>Adjustments in insurance requirements when workers' compensation coverage is provided under State law.</SUBJECT> <SECTNO>500.123</SECTNO> <SUBJECT>Property damage insurance required.</SUBJECT> <SECTNO>500.124</SECTNO> <SUBJECT>Liability bond in lieu of insurance policy.</SUBJECT> <SECTNO>500.125</SECTNO> <SUBJECT>Qualifications and eligibility of insurance carrier or surety.</SUBJECT> <SECTNO>500.126</SECTNO> <SUBJECT>Duration of insurance or liability bond.</SUBJECT> <SECTNO>500.127</SECTNO> <SUBJECT>Limitations on cancellation of insurance or liability bond of registered farm labor contractors.</SUBJECT> <SECTNO>500.128</SECTNO> <SUBJECT>Cancellation of insurance policy or liability bond not relief from insurance requirements.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Housing Safety and Health</HD> <SECTNO>500.130</SECTNO> <SUBJECT>Application and scope of safety and health requirement.</SUBJECT> <SECTNO>500.131</SECTNO> <SUBJECT>Exclusion from housing safety and health requirement.</SUBJECT> <SECTNO>500.132</SECTNO> <SUBJECT>Applicable Federal standards: ETA and OSHA housing standards.</SUBJECT> <SECTNO>500.133</SECTNO> <SUBJECT>Substantive Federal and State safety and health standards defined.</SUBJECT> <SECTNO>500.134</SECTNO> <SUBJECT>Compliance with State standards.</SUBJECT> <SECTNO>500.135</SECTNO> <SUBJECT>Certificate of housing inspection.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Enforcement</HD> <SECTNO>500.140</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>500.141</SECTNO> <SUBJECT>Concurrent actions.</SUBJECT> <SECTNO>500.142</SECTNO> <SUBJECT>Representation of the Secretary.</SUBJECT> <SECTNO>500.143</SECTNO> <SUBJECT>Civil money penalty assessment.</SUBJECT> <SECTNO>500.144</SECTNO> <SUBJECT>Civil money penalties—payment and collection.</SUBJECT> <SECTNO>500.145</SECTNO> <SUBJECT>Registration determinations.</SUBJECT> <SECTNO>500.146</SECTNO> <SUBJECT>Continuation of matters involving violations of FLCRA.</SUBJECT> <SECTNO>500.147</SECTNO> <SUBJECT>Continuation of matters involving violations of section 106 of MSPA.</SUBJECT> <SUBJGRP> <HD SOURCE="HED">Agreements With Federal and State Agencies</HD> <SECTNO>500.155</SECTNO> <SUBJECT>Authority.</SUBJECT> <SECTNO>500.156</SECTNO> <SUBJECT>Scope of agreements with Federal agencies.</SUBJECT> <SECTNO>500.157</SECTNO> <SUBJECT>Scope of agreements with State agencies.</SUBJECT> <SECTNO>500.158</SECTNO> <SUBJECT>Functions delegatable.</SUBJECT> <SECTNO>500.159</SECTNO> <SUBJECT>Submission of plan.</SUBJECT> <SECTNO>500.160</SECTNO> <SUBJECT>Approved State plans.</SUBJECT> <SECTNO>500.161</SECTNO> <SUBJECT>Audits.</SUBJECT> <SECTNO>500.162</SECTNO> <SUBJECT>Reports.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Central Public Registry</HD> <SECTNO>500.170</SECTNO> <SUBJECT>Establishment of registry.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Administrative Proceedings</HD> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTNO>500.200</SECTNO> <SUBJECT>Establishment of procedures and rules of practice.</SUBJECT> <SECTNO>500.201</SECTNO> <SUBJECT>Applicability of procedures and rules.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures Relating to Hearing</HD> <SECTNO>500.210</SECTNO> <SUBJECT>Written notice of determination required.</SUBJECT> <SECTNO>500.211</SECTNO> <SUBJECT>Contents of notice.</SUBJECT> <SECTNO>500.212</SECTNO> <SUBJECT>Request for hearing.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures Relating to Substituted Service</HD> <SECTNO>500.215</SECTNO> <SUBJECT>Change of address.</SUBJECT> <SECTNO>500.216</SECTNO> <SUBJECT>Substituted service.</SUBJECT> <SECTNO>500.217</SECTNO> <SUBJECT>Responsibility of Secretary for service.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Rules of Practice</HD> <SECTNO>500.219</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>500.220</SECTNO> <SUBJECT>Service of determinations and computation of time.</SUBJECT> <SECTNO>500.221</SECTNO> <SUBJECT>Commencement of proceeding.</SUBJECT> <SECTNO>500.222</SECTNO> <SUBJECT>Designation of record.</SUBJECT> <SECTNO>500.223</SECTNO> <SUBJECT>Caption of proceeding.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Referral for Hearing</HD> <SECTNO>500.224</SECTNO> <SUBJECT>Referral to Administrative Law Judge.</SUBJECT> <SECTNO>500.225</SECTNO> <SUBJECT>Notice of docketing.</SUBJECT> <SECTNO>500.226</SECTNO> <SUBJECT>Service upon attorneys for the Department of Labor—number of copies.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures Before Administrative Law Judge</HD> <SECTNO>500.231</SECTNO> <SUBJECT>Appearances; representation of the Department of Labor.</SUBJECT> <SECTNO>500.232</SECTNO> <SUBJECT>Consent findings and order.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Post-Hearing Procedures</HD> <SECTNO>500.262</SECTNO> <SUBJECT>Decision and order of Administrative Law Judge.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Modification or Vacation of Order of Administrative Law Judge</HD> <SECTNO>500.263</SECTNO> <SUBJECT>Authority of the Secretary.</SUBJECT> <SECTNO>500.264</SECTNO> <SUBJECT>Procedures for initiating review.</SUBJECT> <SECTNO>500.265</SECTNO> <SUBJECT>Implementation by the Secretary.</SUBJECT> <SECTNO>500.266</SECTNO> <SUBJECT>Responsibility of the Office of Administrative Law Judges.</SUBJECT> <SECTNO>500.267</SECTNO> <SUBJECT>Filing and Service.</SUBJECT> <SECTNO>500.268</SECTNO> <SUBJECT>Final decision of the Secretary.</SUBJECT> <SECTNO>500.269</SECTNO> <SUBJECT>Stay pending decision of the Secretary.</SUBJECT> </SUBJGRP> <SUBJGRP> <PRTPAGE P="11"/> <HD SOURCE="HED">Record</HD> <SECTNO>500.270</SECTNO> <SUBJECT>Retention of official record.</SUBJECT> <SECTNO>500.271</SECTNO> <SUBJECT>Certification of official record.</SUBJECT> </SUBJGRP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Pub. L. 97-470, 96 Stat. 2583 (29 U.S.C. 1801-1872); Secretary's Order No. 4-2001, 66 FR 29656.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>48 FR 36741, Aug. 12, 1983, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 500.0</SECTNO> <SUBJECT>Introduction.</SUBJECT> <P>(a) The Migrant and Seasonal Agricultural Worker Protection Act (MSPA), hereinafter referred to as MSPA or the Act, repeals and replaces the Farm Labor Contractor Registration Act of 1963, as amended, hereinafter referred to as FLCRA or the Farm Labor Contractor Registration Act. Prior judgments and final orders obtained under FLCRA continue in effect as stated in § 500.4.</P> <P>(b) These regulations include provisions necessitated by the Immigration Reform and Control Act's (IRCA) amendment to the Immigration and Nationality Act (INA). IRCA amended MSPA to remove section 106 thereof prohibiting the employment of illegal aliens. Matters concerning certificate actions or the assessment of civil money penalties, for a violation of section 106 of MSPA which occurred prior to June 1, 1987, continue through final administrative determination as stated in § 500.147.</P> <CITA>[48 FR 36741, Aug. 12, 1983, as amended at 54 FR 13328, Mar. 31, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>(a) Congress stated, in enacting the Migrant and Seasonal Agricultural Worker Protection Act that “[I]t is the purpose of this Act to remove the restraints on commerce caused by activities detrimental to migrant and seasonal agricultural workers; to require farm labor contractors to register under this Act; and to assure necessary protections for migrant and seasonal agricultural workers, agricultural associations, and agricultural employers.” It authorized the Secretary to issue such rules and regulations as are necessary to carry out the Act consistent with the requirements of chapter 5 of title 5, United States Code.</P> <P>(b) These regulations implement this purpose and policy. The regulations contained in this part are issued in accordance with section 511 of the Act and establish the rules and regulations necessary to carry out the Act.</P> <P>(c) Any farm labor contractor, as defined in the Act, is required to obtain a Certificate of Registration issued pursuant to the Act from the Department of Labor or from a State agency authorized to issue such certificates on behalf of the Department of Labor. Such a farm labor contractor must ensure that any individual whom he employs to perform any farm labor contracting activities also obtains a Certificate of Registration. The farm labor contractor is responsible, as well, for any violation of the Act or these regulations by any such employee whether or not the employee obtains a certificate. In addition to registering, farm labor contractors must comply with all other applicable provisions of the Act when they recruit, solicit, hire, employ, furnish or transport or, in the case of migrant agricultural workers, provide housing.</P> <P>(d) Agricultural employers and agricultural associations which are subject to the Act must comply with all of the worker protections which are applicable under the Act to migrant or seasonal agricultural workers whom they recruit, solicit, hire, employ, furnish, or transport or, in the case of migrant agricultural workers, provide housing. The obligations will vary, depending on the types of activities affecting migrant or seasonal agricultural workers. Agricultural employers and agricultural associations and their employees need not obtain Certificates of Registration in order to engage in these activities, even if the workers they obtain are utilized by other persons or on the premises of another.</P> <P>(e) The Act empowers the Secretary of Labor to enforce the Act, conduct investigations, issue subpenas and, in the case of designated violations of the Act, impose sanctions. As provided in the Act, the Secretary is empowered, among other things, to impose an assessment and to collect a civil money penalty of not more than $1,000 for each violation, to seek a temporary or permanent restraining order in a U.S. <PRTPAGE P="12"/>District Court, and to seek the imposition of criminal penalties on persons who willfully and knowingly violate the Act or any regulation under the Act. In accordance with the Act and with these regulations, the Secretary may refuse to issue or to renew, or may suspend or revoke a certificate of registration issued to a farm labor contractor or to a person who engages in farm labor contracting as an employee of a farm labor contractor.</P> <P>(f) The facilities and services of the U.S. Employment Service, including State agencies, authorized by the Wagner-Peyser Act may be denied to any person found by a final determination by an appropriate enforcement agency to have violated any employment-related laws including MSPA when notification of this final determination has been provided to the Job Service by that enforcement agency. See 20 CFR 658.501(a)(4). The facilities and services of the U.S. Employment Service shall be restored immediately upon compliance with 20 CFR 658.502(a)(4).</P> <P>(g) Subparts A through E set forth the substantive regulations relating to farm labor contractors, agricultural employers and agricultural associations. These subparts cover the applicability of the Act, registration requirements applicable to farm labor contractors, the obligations of persons who hold Certificates of Registration, the worker protections which must be complied with by all who are subject to the Act, and the enforcement authority of the Secretary.</P> <P>(h) Subpart F sets forth the rules of practice for administrative hearings relating to actions involving Certificates of Registration. It also outlines the procedure to be followed for filing a challenge to a proposed administrative action relating to violations and summarizes the methods provided for collection and recovery of a civil money penalty.</P> <P>(i)(1) The Act requires that farm labor contractors obtain a certificate of registration from the Department of Labor prior to engaging in farm labor contracting activities. The Act also requires registration by individuals who will perform farm labor contracting activities for a farm labor contractor. Form WH-510 and WH-512 are the applications used to obtain Farm Labor Contractor and Farm Labor Contractor Employee Certificates of Registration. These forms have been approved by the Office of Management and Budget (OMB) under control numbers 1215-0038 (WH-510) and 1215-0037 (WH-512). Forms WH-514 and WH-514a are used when applying for transportation authorization to furnish proof of compliance with vehicle safety requirements. These forms have been jointly cleared by OMB under control number 1215-0036.</P> <P>(2) The Act further requires disclosure to migrant and seasonal agricultural workers regarding wages, hours and other working conditions and housing when provided to migrant workers. The Department of Labor has developed optional forms for use in making the required disclosure. OMB has approved the following: Worker Information (WH-516) 1215-0145 and Housing Terms and Conditions (WH-521) 1215-0146.</P> <P>(3) The Act also requires that farm labor contractors, agricultural employers and agricultural associations make, keep, preserve and disclose certain payroll records. Forms WH-501 and WH-501a (Spanish version) are provided to assist in carrying out this requirement. In addition, farm labor contractors who are applying for housing authorization must submit information which identifies the housing to be used along with proof of compliance with housing safety and health requirements. There has been no form developed for this purpose. The Act further requires disclosure by the insurance industry of certain information pertaining to cancellation of vehicle liability insurance policies. The requirements concerning recordkeeping, housing and insurance have been cleared by OMB under control number 1215-0148.</P> <P>(4) The Act provides that no farm labor contractor shall knowingly employ or utilize the services of aliens not lawfully admitted for permanent residence or who have not been authorized by the Attorney General to accept employment. Form WH-509 is an optional form which may be used to self-certify that the applicant is a citizen of the U.S. This form has been cleared by <PRTPAGE P="13"/>OMB under control number 1215-0091. (See § 500.59(a)(11)).</P> <CITA>[48 FR 36741, Aug. 12, 1983; 48 FR 38380, Aug. 23, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.2</SECTNO> <SUBJECT>Compliance with State laws and regulations.</SUBJECT> <P>The Act and these regulations are intended to supplement State law; compliance with the Act or these regulations shall not excuse any</P> <FP>individual from compliance with appropriate State law or regulation.</FP> </SECTION> <SECTION> <SECTNO>§ 500.3</SECTNO> <SUBJECT>Effective date of the Act; transition period; repeal of the Farm Labor Contractor Registration Act.</SUBJECT> <P>(a) The provisions of the Migrant and Seasonal Agricultural Worker Protection Act are effective on April 14, 1983, and are codified in 29 U.S.C. 1801 <E T="03">et seq</E>.</P> <P>(b) The Migrant and Seasonal Agricultural Worker Protection Act repeals the Farm Labor Contractor Registration Act of 1963, as amended, (7 U.S.C. 2041, <E T="03">et seq.</E>), effective April 14, 1983.</P> <P>(c) Violations of the Farm Labor Contractor Registration Act occurring prior to April 14, 1983, may be pursued by the Department of Labor after that date.</P> </SECTION> <SECTION> <SECTNO>§ 500.4</SECTNO> <SUBJECT>Effect of prior judgments and final orders obtained under the Farm Labor Contractor Registration Act.</SUBJECT> <P>The Secretary may refuse to issue or to renew, or may suspend or revoke, a Certificate of Registration under the Act, if the applicant or holder has failed to pay any court judgment obtained by the Secretary or any other person under the Farm Labor Contractor Registration Act, or has failed to comply with any final order issued by the Secretary under the Farm Labor Contractor Registration Act. The Secretary may deny a Certificate of Registration under the Act to any farm labor contractor who has a judgment outstanding against him, or is subject to a final order assessing a civil money penalty which has not been paid.</P> </SECTION> <SECTION> <SECTNO>§ 500.5</SECTNO> <SUBJECT>Filing of applications, notices and documents.</SUBJECT> <P>Unless otherwise prescribed herein, all applications, notices and other documents required or permitted to be filed by these regulations shall be filed in accordance with the provisions of subpart F of the regulations.</P> </SECTION> <SECTION> <SECTNO>§ 500.6</SECTNO> <SUBJECT>Accuracy of information, statements and data.</SUBJECT> <P>Information, statements and data submitted in compliance with provisions of the Act or these regulations are subject to title 18, section 1001, of the United States Code, which provides:</P> <EXTRACT> <HD SOURCE="HD2">Section 1001.Statements or entries generally.</HD> <P>Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.</P> </EXTRACT> </SECTION> <SECTION> <SECTNO>§ 500.7</SECTNO> <SUBJECT>Investigation authority of the Secretary.</SUBJECT> <P>(a) The Secretary, either pursuant to a complaint or otherwise, shall, as may be appropriate, investigate and, in connection therewith, enter and inspect such places (including housing and vehicles) and such records (and make transcriptions thereof), question such persons and gather such information as he deems necessary to determine compliance with the Act, or these regulations.</P> <P>(b) The Secretary may issue subpenas requiring the attendance and testimony of witnesses or the production of any evidence in connection with such investigations. The Secretary may administer oaths, examine witnesses, and receive evidence. For the purpose of any hearing or investigation provided for in the Act, the Authority contained in sections 9 and 10 of the Federal Trade Commission Act (15 U.S.C. 49, 50), relating to the attendance of witnesses and the production of books, papers, and documents, shall be available to the Secretary. The Secretary shall conduct investigations in a manner which protects the confidentiality of any complainant or other party who provides information to the Secretary in good faith.<PRTPAGE P="14"/> </P> <P>(c) Any person may report a violation of the Act or these regulations to the Secretary by advising any local office of the Employment Service of the various States, or any office of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, or any other authorized representative of the Administrator. The office or person receiving such a report shall refer it to the appropriate office of the Wage and Hour Division, Employment Standards Administration for the region or area in which the reported violation is alleged to have occurred.</P> <P>(d) In case of disobedience to a subpena, the Secretary may invoke the aid of a United States District Court which is authorized to issue an order requiring the person to obey such subpena.</P> </SECTION> <SECTION> <SECTNO>§ 500.8</SECTNO> <SUBJECT>Prohibition on interference with Department of Labor officials.</SUBJECT> <P>It is a violation of section 512(c) of the Act for any person to unlawfully resist, oppose, impede, intimidate, or interfere with any official of the Department of Labor assigned to perform an investigation, inspection, or law enforcement function pursuant to the Act during the performance of such</P> <FP>duties. (Other Federal statutes which prohibit persons from interfering with a Federal officer in the course of official duties are found at 18 U.S.C. 111 and 18 U.S.C. 1114.)</FP> </SECTION> <SECTION> <SECTNO>§ 500.9</SECTNO> <SUBJECT>Discrimination prohibited.</SUBJECT> <P>(a) It is a violation of the Act for any person to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any migrant or seasonal agricultural worker because such worker has, with just cause:</P> <P>(1) Filed a complaint with reference to the Act with the Secretary of Labor; or</P> <P>(2) Instituted or caused to be instituted any proceeding under or related to the Act; or</P> <P>(3) Testified or is about to testify in any proceeding under or related to the Act; or</P> <P>(4) Exercised or asserted on behalf of himself or others any right or protection afforded by the Act.</P> <P>(b) A migrant or seasonal agricultural worker who believes, with just cause, that he has been discriminated against by any person in violation of this section may, no later than 180 days after such violation occurs, file a complaint with the Secretary alleging such discrimination.</P> </SECTION> <SECTION> <SECTNO>§ 500.10</SECTNO> <SUBJECT>Waiver of rights prohibited.</SUBJECT> <P>Any agreement by an employee purporting to waive or modify any rights inuring to said person under the Act or these regulations shall be void as contrary to public policy, except that a waiver or modification of rights or obligations hereunder in favor of the Secretary shall be valid for purposes of enforcement of the provisions of the Act or these regulations. This does not prevent agreements to settle private litigation.</P> </SECTION> <SECTION> <SECTNO>§ 500.20</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this part:</P> <P>(a) <E T="03">Administrator</E> means the Administrator of the Wage and Hour Division, Employment Standards Administration, United States Department of Labor, and such authorized representatives as may be designated by the Administrator to perform any of the functions of the Administrator under this part.</P> <P>(b) <E T="03">Administrative Law Judge</E> means a person appointed as provided in title 5 U.S.C. and qualified to preside at hearings under 5 U.S.C. 557. <E T="03">Chief Administrative Law Judge</E> means the Chief Administrative Law Judge, United States Department of Labor, 800 K Street, NW., Suite 400, Washington, DC 20001-8002.</P> <P>(c) <E T="03">Agricultural association</E> means any nonprofit or cooperative association of farmers, growers, or ranchers, incorporated or qualified under applicable State law, which recruits, solicits, hires, employs, furnishes, or transports any migrant or seasonal agricultural worker.</P> <P>(d) <E T="03">Agricultural employer</E> means any person who owns or operates a farm, ranch, processing establishment, cannery, gin, packing shed or nursery, or who produces or conditions seed, and who either recruits, solicits, hires, employs, furnishes, or transports any migrant or seasonal agricultural worker. <PRTPAGE P="15"/> <E T="03">Produces seed</E> means the planting, cultivation, growing and harvesting of seeds of agricultural or horticultural commodities. <E T="03">Conditions seed</E> means the in-plant work done after seed production including the drying and aerating of seed.</P> <P>(e) <E T="03">Agricultural employment</E> means employment in any service or activity included within the provisions of section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)), or section 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C. 3121(g)) and the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state.</P> <P>(f) <E T="03">Convicted</E> means that a final judgment of guilty has been rendered by a court of competent jurisdiction from which no opportunity for appeal remains.</P> <P>(g) <E T="03">Day-haul operation</E> means the assembly of workers at a pick-up point waiting to be hired and employed, transportation of such workers to agricultural employment, and the return of such workers to a drop-off point on the same day. This term does not include transportation provided by an employer for individuals who are already employees at the time they are picked up nor does it include carpooling arrangements by such employees which are not specifically directed or requested by the employer, farm labor contractor or agent thereof.</P> <P>(h)(1) The term <E T="03">employ</E> has the meaning given such term under section 3(g) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(g)) for the purposes of implementing the requirements of that Act. As so defined, <E T="03">employ</E> includes to suffer or permit to work.</P> <P>(2) The term <E T="03">employer</E> is given its meaning as found in the Fair Labor Standards Act. <E T="03">Employer</E> under section 3(d) of that Act includes any person acting directly or indirectly in the interest of an employer in relation to an employee.</P> <P>(3) The term <E T="03">employee</E> is also given its meaning as found in the Fair Labor Standards Act. <E T="03">Employee</E> under section 3(e) of that Act means any individual employed by an employer.</P> <P>(4) The definition of the term <E T="03">employ</E> may include consideration of whether or not an <E T="03">independent contractor</E> or <E T="03">employment</E> relationship exists under the Fair Labor Standards Act. Under MSPA, questions will arise whether or not a farm labor contractor engaged by an agricultural employer/association is a bona fide independent contractor or an employee. Questions also arise whether or not the worker is a bona fide independent contractor or an employee of the farm labor contractor and/or the agricultural employer/association. These questions should be resolved in accordance with the factors set out below and the principles articulated by the federal courts in <E T="03">Rutherford Food Corp.</E> v. <E T="03">McComb,</E> 331 U.S. 722 (1947), <E T="03">Real</E> v. <E T="03">Driscoll Strawberry Associates, Inc.,</E> 603 F.2d 748 (9th Cir. 1979), <E T="03">Sec'y of Labor, U.S. Dept. of Labor</E> v. <E T="03">Lauritzen,</E> 835 F.2d 1529 (7th Cir. 1987), <E T="03">cert.</E> denied, 488 U.S. 898 (1988); <E T="03">Beliz</E> v. <E T="03">McLeod,</E> 765 F.2d 1317 (5th Cir. 1985), and <E T="03">Castillo</E> v. <E T="03">Givens,</E> 704 F.2d 181 (5th Cir.), <E T="03">cert. denied,</E> 464 U.S. 850 (1983). If it is determined that the farm labor contractor is an <E T="03">employee</E> of the agricultural employer/association, the agricultural workers in the farm labor contractor's crew who perform work for the agricultural employer/association are deemed to be employees of the agricultural employer/association and an inquiry into joint employment is not necessary or appropriate. In determining if the farm labor contractor or worker is an employee or an independent contractor, the ultimate question is the economic reality of the relationship—whether there is economic dependence upon the agricultural employer/association or farm labor contractor, as appropriate. <E T="03">Lauritzen</E> at 1538; <E T="03">Beliz</E> at 1329; <E T="03">Castillo</E> at 192; <E T="03">Real</E> at 756. This determination is based upon an evaluation of all of the circumstances, including the following:</P> <P>(i) The nature and degree of the putative employer's control as to the manner in which the work is performed;</P> <P>(ii) The putative employee's opportunity for profit or loss depending upon his/her managerial skill;</P> <P>(iii) The putative employee's investment in equipment or materials required for the task, or the putative employee's employment of other workers;<PRTPAGE P="16"/> </P> <P>(iv) Whether the services rendered by the putative employee require special skill;</P> <P>(v) The degree of permanency and duration of the working relationship;</P> <P>(vi) The extent to which the services rendered by the putative employee are an integral part of the putative employer's business.</P> <P>(5) The definition of the term <E T="03">employ</E> includes the <E T="03">joint employment</E> principles applicable under the Fair Labor Standards Act. The term <E T="03">joint employment</E> means a condition in which a single individual stands in the relation of an employee to two or more persons at the same time. A determination of whether the employment is to be considered joint employment depends upon all the facts in the particular case. If the facts establish that two or more persons are completely disassociated with respect to the employment of a particular employee, a joint employment situation does not exist. When the putative employers share responsibility for activities set out in the following factors or in other relevant facts, this is an indication that the putative employers are not completely disassociated with respect to the employment and that the agricultural worker may be economically dependent on both persons:</P> <P>(i) If it is determined that a farm labor contractor is an independent contractor, it still must be determined whether or not the employees of the farm labor contractor are also jointly employed by the agricultural employer/association. <E T="03">Joint employment</E> under the Fair Labor Standards Act is joint employment under the MSPA. <E T="03">Such joint employment</E> relationships, which are common in agriculture, have been addressed both in the legislative history and by the courts.</P> <P>(ii) The legislative history of the Act (H. Rep. No. 97-885, 97th Cong., 2d Sess., 1982) states that the legislative purpose in enacting MSPA was “to reverse the historical pattern of abuse and exploitation of migrant and seasonal farm workers * * *,” which would only be accomplished by “advanc[ing] * * * a completely new approach” (Rept. at 3). Congress's incorporation of the FLSA term <E T="03">employ</E> was undertaken with the deliberate intent of adopting the FLSA <E T="03">joint employer</E> doctrine as the “central foundation” of MSPA and “the best means by which to insure that the purposes of this MSPA would be fulfilled” (Rept. at 6). Further, Congress intended that the <E T="03">joint employer</E> test under MSPA be the formulation as set forth in <E T="03">Hodgson</E> v. <E T="03">Griffin & Brand of McAllen, Inc.</E> 471 F.2d 235 (5th Cir.), <E T="03">cert. denied,</E> 414 U.S. 819 (1973) (Rept. at 7). In endorsing <E T="03">Griffin & Brand,</E> Congress stated that this formulation should be controlling in situations “where an agricultural employer * * * asserts that the agricultural workers in question are the <E T="03">sole</E> employees of an independent contractor/crewleader,” and that the “decision makes clear that even if a farm labor contractor is found to be a bona fide independent contractor, * * * this status does not as a matter of law negate the possibility that an agricultural employer may be a joint employer * * * of the harvest workers” together with the farm labor contractor. Further, regarding the <E T="03">joint employer</E> doctrine and the <E T="03">Griffin & Brand</E> formulation, Congress stated that “the absence of evidence on any of the criteria listed does not preclude a finding that an agricultural association or agricultural employer was a joint employer along with the crewleader”, and that “it is expected that the special aspects of agricultural employment be kept in mind” when applying the tests and criteria set forth in the case law and legislative history (Rept. at 8).</P> <P>(iii) In determining whether or not an employment relationship exists between the agricultural employer/association and the agricultural worker, the ultimate question to be determined is the economic reality—whether the worker is so economically dependent upon the agricultural employer/association as to be considered its employee.</P> <P>(iv) The factors set forth in paragraphs (h)(5)(iv)(A) through (G) of this section are analytical tools to be used in determining the ultimate question of economic dependency. The consideration of each factor, as well as the determination of the ultimate question of economic dependency, is a qualitative rather than quantitative analysis. The factors are not to be applied as a <PRTPAGE P="17"/>checklist. No one factor will be dispositive of the ultimate question; nor must a majority or particular combination of factors be found for an employment relationship to exist. The analysis as to the existence of an employment relationship is not a strict liability or <E T="03">per se</E> determination under which any agricultural employer/association would be found to be an employer merely by retaining or benefiting from the services of a farm labor contractor. The factors set forth in paragraphs (h)(5)(iv)(A) through (G) of this section are illustrative only and are not intended to be exhaustive; other factors may be significant and, if so, should be considered, depending upon the specific circumstances of the relationship among the parties. How the factors are weighed depends upon all of the facts and circumstances. Among the factors to be considered in determining whether or not an employment relationship exists are:</P> <P>(A) Whether the agricultural employer/association has the power, either alone or through control of the farm labor contractor to direct, control, or supervise the worker(s) or the work performed (such control may be either direct or indirect, taking into account the nature of the work performed and a reasonable degree of contract performance oversight and coordination with third parties);</P> <P>(B) Whether the agricultural employer/association has the power, either alone or in addition to another employer, directly or indirectly, to hire or fire, modify the employment conditions, or determine the pay rates or the methods of wage payment for the worker(s);</P> <P>(C) The degree of permanency and duration of the relationship of the parties, in the context of the agricultural activity at issue;</P> <P>(D) The extent to which the services rendered by the worker(s) are repetitive, rote tasks requiring skills which are acquired with relatively little training;</P> <P>(E) Whether the activities performed by the worker(s) are an integral part of the overall business operation of the agricultural employer/association;</P> <P>(F) Whether the work is performed on the agricultural employer/association's premises, rather than on premises owned or controlled by another business entity; and</P> <P>(G) Whether the agricultural employer/association undertakes responsibilities in relation to the worker(s) which are commonly performed by employers, such as preparing and/or making payroll records, preparing and/or issuing pay checks, paying FICA taxes, providing workers' compensation insurance, providing field sanitation facilities, housing or transportation, or providing tools and equipment or materials required for the job (taking into account the amount of the investment).</P> <P>(i) <E T="03">Farm labor contracting activity</E> means recruiting, soliciting, hiring, employing, furnishing, or transporting any migrant or seasonal agricultural worker.</P> <P>(j) <E T="03">Farm labor contractor</E> means any person—other than an agricultural employer, an agricultural association, or an employee of an agricultural employer or agricultural association—who, for any money or other valuable consideration paid or promised to be paid, performs any farm labor contracting activity.</P> <P>(k) <E T="03">Farm Labor Contractor Certificate of Registration</E> or <E T="03">Certificate of Registration</E> means the certificate issued by the Administrator which permits a farm labor contractor to engage in farm labor contracting activities.</P> <P>(l) <E T="03">Farm labor contractor employee</E> who is required to obtain a Certificate of Registration as an employee of a farm labor contractor means a person who performs farm labor contracting activity solely on behalf of a farm labor contractor holding a valid Certificate of Registration and is not an independent farm labor contractor who would be required to register under the Act in his own right.</P> <P>(m) <E T="03">Farm Labor Contractor Employee Certificate</E> or <E T="03">Farm Labor Contractor Employee Certificate of Registration</E> or <E T="03">Employee Certificate</E> means the certificate issued by the Administrator to an employee of a farm labor contractor authorizing the performance of farm labor contracting activities solely on behalf of such farm labor contractor and not as an independent farm labor <PRTPAGE P="18"/>contractor who would be required to register in his own right.</P> <P>(n) <E T="03">Illegal alien</E> means any person who is not lawfully admitted for permanent residence in the United States or who has not been authorized by the Attorney General to accept employment in the United States.</P> <P>(o) <E T="03">Immediate family</E> includes only:</P> <P>(1) A spouse;</P> <P>(2) Children, stepchildren, and foster children;</P> <P>(3) Parents, stepparents, and foster parents; and</P> <P>(4) Brothers and sisters.</P> <P>(p) <E T="03">Migrant agricultural worker</E> means an individual who is employed in agricultural employment of a seasonal or other temporary nature, and who is required to be absent overnight from his permanent place of residence.</P> <P>(1) <E T="03">Migrant agricultural worker</E> does not include:</P> <P>(i) Any immediate family member of an agricultural employer or a farm labor contractor; or</P> <P>(ii) Any temporary nonimmigrant alien who is authorized to work in agricultural employment in the United States under sections 101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and Nationality Act.</P> <P>(2) <E T="03">Permanent place of residence,</E> with respect to an individual, means a domicile or permanent home. Permanent place of residence does not include seasonal or temporary housing such as a labor camp. The term <E T="03">permanent place of residence</E> for any nonimmigrant alien is that individual's country of origin.</P> <P>(q) <E T="03">Person</E> means any individual, partnership, association, joint stock company, trust, cooperative, or corporation.</P> <P>(r) <E T="03">Seasonal agricultural worker</E> means an individual who is employed in agricultural employment of a seasonal or other temporary nature and is not required to be absent overnight from his permanent place of residence:</P> <P>(1) When employed on a farm or ranch performing field work related to planting, cultivating, or harvesting operations; or</P> <P>(2) When employed in canning, packing, ginning, seed conditioning or related research, or processing operations, and transported, or caused to be transported, to or from the place of employment by means of a day-haul operation.</P> <P>(i) <E T="03">Seasonal agricultural worker</E> does not include:</P> <P>(A) Any migrant agricultural worker;</P> <P>(B) Any immediate family member of an agricultural employer or a farm labor contractor; or</P> <P>(C) Any temporary nonimmigrant alien who is authorized to work in agricultural employment in the United States under sections 101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and Nationality Act.</P> <P>(ii) <E T="03">Field work related to planting, cultivating or harvesting operations</E> includes all farming operations on a farm or ranch which are normally required to plant, harvest or produce agricultural or horticultural commodities, including the production of a commodity which normally occurs in the fields of a farm or ranch as opposed to those activities which generally occur in a processing plant or packing shed. A worker engaged in the placing of commodities in a container in the field and on-field loading of trucks and similar transports is included. Nursery, mushroom and similar workers engaged in activities in connection with planting, cultivating or harvesting operations are intended to be covered. An individual operating a machine, such as a picker, or tractor is not included when performing such activity.</P> <P>(s) <E T="03">On a seasonal or other temporary basis</E> means:</P> <P>(1) Labor is performed on a seasonal basis where, ordinarily, the employment pertains to or is of the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may not be continuous or carried on throughout the year. A worker who moves from one seasonal activity to another, while employed in agriculture or performing agricultural labor, is employed on a seasonal basis even though he may continue to be employed during a major portion of the year.</P> <P>(2) A worker is employed on <E T="03">other temporary basis</E> where he is employed for a limited time only or his performance is contemplated for a particular piece of work, usually of short duration. Generally, employment, which is <PRTPAGE P="19"/>contemplated to continue indefinitely, is not temporary.</P> <P>(3) <E T="03">On a seasonal or other temporary basis</E> does not include the employment of any foreman or other supervisory employee who is employed by a specific agricultural employer or agricultural association essentially on a year round basis.</P> <P>(4) <E T="03">On a seasonal or other temporary basis</E> does not include the employment of any worker who is living at his permanent place of residence, when that worker is employed by a specific agricultural employer or agricultural association on essentially a year round basis to perform a variety of tasks for his employer and is not primarily employed to do field work.</P> <P>(t) <E T="03">Secretary</E> means the Secretary of Labor or the Secretary's authorized representative.</P> <P>(u)(1) <E T="03">Solicitor of Labor</E> means the Solicitor, United States Department of Labor, and includes attorneys designated by the Solicitor to perform functions of the Solicitor under these regulations.</P> <P>(2) <E T="03">Associate Solicitor for Fair Labor Standards</E> means the Associate Solicitor, who, among other duties, is in charge of litigation for the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), Office of the Solicitor, U.S. Department of Labor, Washington, DC 20210.</P> <P>(3) <E T="03">Regional Solicitors</E> means the attorneys in charge of the various regional offices of the Office of the Solicitor.</P> <P>(v) <E T="03">State</E> means any of the States of the United States, the District of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, and Guam. <E T="03">State agency</E> means a State agency vested with all powers necessary to cooperate with the U.S.</P> <FP>Department of Labor for purposes of entering into agreements to carry out the Act as provided in section 513 thereof.</FP> <P>(w) <E T="03">Temporary nonimmigrant alien</E> means a person who has a residence in a foreign country which he does not intend to abandon and who comes temporarily to the United States, with approval of the Attorney General, to perform temporary service or labor.</P> <P>(x) The <E T="03">Wagner-Peyser Act</E> is the Act of June 6, 1933 (48 Stat. 113; codified in 29 U.S.C. 49 <E T="03">et seq.</E>), providing, inter alia, for the establishment of the U.S. Employment Service. <E T="03">Employment Service of the various States</E> means a State agency vested with all powers necessary to cooperate with the U.S. Employment Service under the Wagner-Peyser Act.</P> <P>(y) The <E T="03">Immigration and Nationality Act</E> (INA) as amended by the <E T="03">Immigration Reform and Control Act of 1986</E> (IRCA) to effectively control unauthorized immigration to the United States and for other purposes, is set out in 8 U.S.C. 1101 <E T="03">et seq.</E> </P> <CITA>[48 FR 36741, Aug. 12, 1983; 48 FR 38374, Aug. 23, 1983, as amended at 54 FR 13329, Mar. 31, 1989; 56 FR 54708, Oct. 22, 1991; 62 FR 11747, Mar. 12, 1997]</CITA> </SECTION> <SUBJGRP> <HD SOURCE="HED">Applicability of the Act: Exemptions</HD> <SECTION> <SECTNO>§ 500.30</SECTNO> <SUBJECT>Persons not subject to the Act.</SUBJECT> <P>(a) <E T="03">Family business exemption.</E> Any individual who engages in a farm labor contracting activity on behalf of a farm, processing establishment, seed conditioning establishment, cannery, gin, packing shed, or nursery, which is owned or operated exclusively by such individual or an immediate family member of such individual, if such activities are performed only for such operation and exclusively by such individual or an immediate family member, but without regard to whether such individual has incorporated or otherwise organized for business purposes.</P> <P>(b) <E T="03">Small business exemption.</E> Any person, other than a farm labor contractor, for whom the man-days exemption for agricultural labor provided under section 13(a)(6)(A) of the Fair Labor Standards Act of 1938 (29 U.S.C. 213(a)(6)(A)) is applicable. That exemption applies to an agricultural employer who did not, during any calendar quarter of the preceding calendar year, use more man-days of agricultural labor than the limit specified under that statute.</P> <P>(1) Currently the limit for exemption is 500 man-days.</P> <P>(2) A <E T="03">man-day</E> means any day during which an employee performs agricultural labor for not less than one (1) <PRTPAGE P="20"/>hour. Agricultural labor performed by an employer's parent, spouse, child, or other member of his immediate family, i.e., step-children, foster children, step-parents and foster parents, brothers, and sisters is not counted as man-days.</P> <P>(3) The man-days of agricultural labor rendered in a joint employment relationship are counted toward the man-days of such labor of each employer for purposes of the man-day test of this exemption.</P> <P>(c) <E T="03">Common carriers.</E> Any common carrier which would be a farm labor contractor solely because the carrier is engaged in the farm labor contracting activity of transporting any migrant or seasonal agricultural worker. A “common carrier” by motor vehicle is one which holds itself out to the general public to engage in transportation of passengers for hire, whether over regular or irregular routes, and which holds a valid certificate of authorization for such purposes from an appropriate local, State or Federal agency.</P> <P>(d) <E T="03">Labor organizations.</E> Any labor organization, as defined in section 2(5) of the Labor Management Relations Act (29 U.S.C. 152(5)) (without regard to the exclusion of agricultural employees in that Act) or as defined under applicable State labor relations law.</P> <P>(e) <E T="03">Nonprofit charitable organizations.</E> Any nonprofit charitable organization or public or private nonprofit educational institution.</P> <P>(f) <E T="03">Local short-term contracting activity.</E> Any person who engages in any farm labor contracting activity solely within a twenty-five mile intrastate radius of such person's permanent place of residence and for not more than thirteen weeks per year.</P> <P>(1) <E T="03">Twenty-five mile intrastate radius</E> as used in section 4(a)(3)(D) of the Act means that engagement in a farm labor contracting activity may not go beyond a twenty-five mile intrastate geographical radius. Once this limit is transcended, the exemption no longer applies and the person becomes subject to the requirements of the Act. If, for example, a person or his employee solicits workers from a distance greater than twenty-five miles from his permanent residence or from across a State line, then the person has engaged in a named activity outside of the permitted scope of the exemption, and is subject to the requirements of the Act. A person who uses lines of communication (such as U.S. Mail, telephone, or advertising) to recruit, solicit, hire, or furnish workers over a distance greater than twenty-five miles from his permanent residence or from across a State line for agricultural employment is also engaged in a named activity beyond the specified limit of the exemption and is subject to the Act. In the case of a corporation its permanent place of residence for these purposes shall be a single designated location.</P> <P>(2) <E T="03">For not more than thirteen weeks per year</E> as used in section 4(a)(3)(D) of the Act means that farm labor contracting activities may not be engaged in for more than thirteen weeks in a year. This does not mean, however,</P> <FP>that persons who engage in intrastate and short-range farm labor contracting activities are exempt for the first thirteen weeks of their farm labor contracting activities each year. The number of weeks of contracting activity during the prior year is also a factor. When the limit of weeks for the exemption is exceeded in a calendar year, the person is subject immediately to the Act and is also presumed subject to the Act in the next calendar year, unless it can be shown that the tests of section 4(a)(3)(D) are met.</FP> <P>(g) <E T="03">Custom combine.</E> Any custom combine, hay harvesting, or sheep shearing operation. <E T="03">Custom combine, hay harvesting, and sheep shearing operation</E> means the agricultural services and activities involved in combining grain, harvesting hay and shearing sheep which are provided to a farmer on a contract basis by a person who provides the necessary equipment and labor and who specializes on providing such services and activities.</P> <P>(h) <E T="03">Custom poultry operations.</E> Any custom poultry harvesting, breeding, debeaking, desexing, or health service operation, provided the employees of the operation are not regularly required to be away from their permanent place of residence other than during their normal working hours.</P> <P>(i) <E T="03">Seed production exemption.</E> (1) Any person whose principal occupation or <PRTPAGE P="21"/>business is not agricultural employment, when supplying full-time students or other individuals whose principal occupation is not agricultural employment to detassel, rogue, or otherwise engage in the production of seed and to engage in related and incidental agricultural employment, unless such full-time students or other individuals are required to be away from their permanent place of residence overnight or there are individuals under eighteen years of age who are providing transportation on behalf of such person.</P> <P>(2) Any person to the extent he is supplied with students or other individuals for agricultural employment in accordance with paragraph (i)(1) of this section by a person who is exempt thereunder.</P> <P>(j) <E T="03">Shade grown tobacco.</E> (1) Any person whose principal occupation or business is not agricultural employment, when supplying full-time students or other individuals whose principal occupation is not agricultural employment to string or harvest shade grown tobacco and to engage in related and incidental agricultural employment, unless there are individuals under eighteen years of age who are providing transportation on behalf of such person.</P> <P>(2) Any person to the extent he is supplied with students or other individuals for agricultural employment is accordance with paragraph (j)(1) of this section by a person who is exempt thereunder.</P> <P>(k) <E T="03">Employees of exempt employers.</E> Any employee of any person described in paragraphs (c) through (j) of this section when performing farm labor contracting activities within the scope of such exemptions and exclusively for such person.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Registration of Farm Labor Contractors and Employees of Farm Labor Contractors Engaged in Farm Labor Contracting Activities</HD> <SUBJGRP> <HD SOURCE="HED">Registration Requirements; General</HD> <SECTION> <SECTNO>§ 500.40</SECTNO> <SUBJECT>Registration in general.</SUBJECT> <P>Any person who desires to engage in any activity as a farm labor contractor, as defined in the Act and these regulations, and is not exempt, is required first to obtain a Certificate of Registration authorizing each such activity. Any employee of a registered farm labor contractor who performs farm labor contracting activities solely on behalf of such contractor, and who is not an independent contractor, must obtain a Farm Labor Contractor Employee Certificate of Registration authorizing each such activity. The employee's certificate must show the name of the farm labor contractor for whom the activities are to be performed. The contractor whose name appears on the employee's certificate must hold a valid Certificate of Registration covering the entire period shown on the employee's certificate.</P> </SECTION> <SECTION> <SECTNO>§ 500.41</SECTNO> <SUBJECT>Farm labor contractor is responsible for actions of his farm labor contractor employee.</SUBJECT> <P>(a) A farm labor contractor is responsible for assuring that every employee who is performing farm labor contracting activities on behalf of such contractor has obtained either a Farm Labor Contractor Employee Certificate of Registration or a Certificate of Registration as an independent farm labor contractor, as required by the Act and these regulations, prior to such employee's engagement in any activity enumerated in section 3(6) of the Act. A farm labor contractor who utilizes the services of another farm labor contractor who is not his employee must also comply with the provisions of § 500.71. The farm labor contractor is responsible for any violations of the Act or these regulations committed by his employee, whether or not the employee has registered as required by the Act.</P> <P>(b) A Farm Labor Contractor Employee Certificate of Registration is valid only during the period in which the holder is an employee of the registered farm labor contractor named on the Farm Labor Contractor Employee Certificate. If prior to the expiration of the Employee Certificate, the holder, through a change in employment, should become an employee of a different registered farm labor contractor, a replacement Employee Certificate which names the new employer may be obtained by submitting to the <PRTPAGE P="22"/>regional office that issued the original employee certificate or to any regional office of the Wage and Hour Division, Employment Standards Administration, a written statement that includes the date of the change in employment status and the name, the permanent place of residence and certificate registration number of the new employer. Any such change should be reported immediately.</P> </SECTION> <SECTION> <SECTNO>§ 500.42</SECTNO> <SUBJECT>Certificate of Registration to be carried and exhibited.</SUBJECT> <P>Each registered farm labor contractor and registered farm labor contractor employee shall carry at all times while engaging in farm labor contracting activities, a Certificate of Registration or a Farm Labor Contractor Employee Certificate as appropriate and, upon request, shall exhibit that certificate to representatives of the U.S. Department of Labor and State Employment Service Agencies and to all persons with whom he intends to deal as a farm labor contractor or farm labor contractor employee.</P> </SECTION> <SECTION> <SECTNO>§ 500.43</SECTNO> <SUBJECT>Effect of failure to produce certificate.</SUBJECT> <P>The facilities and the services authorized by the Wagner-Peyser Act shall be denied to any farm labor contractor upon refusal or failure to produce, when asked, a Certificate of Registration. Services shall be provided upon presentation of a valid Certificate of Registration.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Applications and Renewal of Farm Labor Contractor and Farm Labor Contractor Employee Certificates</HD> <SECTION> <SECTNO>§ 500.44</SECTNO> <SUBJECT>Form of application.</SUBJECT> <P>An application for issuance or renewal of a Farm Labor Contractor Certificate of Registration or Farm Labor Contractor Employee Certificate shall be made on forms designated by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 500.45</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <P>The application shall set forth the information required thereon which shall include the following:</P> <P>(a) A declaration, subscribed and sworn to by the applicant, stating the applicant's permanent place of residence, the farm labor contracting activities for which the certificate is requested, and the address to which official documents should be mailed;</P> <P>(b) A statement identifying each vehicle to be used to transport any migrant or seasonal agricultural worker and, if the vehicle is or will be owned or controlled by the applicant, documentation showing that the applicant for a Farm Labor Contractor Certificate of Registration is in compliance with the requirements of section 401 of the Act with respect to each such vehicle;</P> <P>(c) A statement identifying each facility or real property to be used to house any migrant agricultural worker and, if the facility or real property is or will be owned or controlled by the applicant, documentation showing that the applicant for a Farm Labor Contractor Certificate of Registration is in compliance with section 203 of the Act with respect to each such facility or real property;</P> <P>(d) A set of fingerprints of the applicant on Form FD 258 as prescribed by the U.S. Department of Justice;</P> <P>(e) A declaration, subscribed and sworn to by the applicant, consenting to the designation by a court of the Secretary as an agent available to accept service of summons in any action against the applicant, if the applicant has left the jurisdiction in which the action is commenced or otherwise has become unavailable to accept service; and</P> <P>(f) Such other relevant information as the Secretary may require.</P> </SECTION> <SECTION> <SECTNO>§ 500.46</SECTNO> <SUBJECT>Filing an application.</SUBJECT> <P>Registration under the Act is required whether or not licensing or registration is required under State law.</P> </SECTION> <SECTION> <SECTNO>§ 500.47</SECTNO> <SUBJECT>Place for filing application.</SUBJECT> <P>Application forms may be filed in any State Employment Service Office or in any office of the Wage and Hour Division, U.S. Department of Labor.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Action on Application</HD> <SECTION> <SECTNO>§ 500.48</SECTNO> <SUBJECT>Issuance of certificate.</SUBJECT> <P>The Administrator or authorized representative shall:<PRTPAGE P="23"/> </P> <P>(a) Review each application received and determine whether such application is complete and properly executed;</P> <P>(b) When appropriate, notify the applicant in writing of any incompleteness or error in the application and return the application for correction and completion;</P> <P>(c) Determine, after appropriate investigation, whether the applicant has complied with the requirements of the Act and these regulations, and if appropriate, issue a Certificate of</P> <FP>Registration or a Farm Labor Contractor Employee Certificate of Registration authorizing the performance of one or more activities permitted under the Act;</FP> <P>(d) Authorize the activity of transporting a migrant or seasonal agricultural worker, subject to the maximum number of workers authorized to be transported under the vehicle liability policy and as indicated on the face of the Certificate of Registration, only upon receipt of:</P> <P>(1) A statement in the manner prescribed by the Secretary identifying each vehicle to be used, or caused to be used, by the applicant for the transportation of any migrant or seasonal agricultural worker during the period for which registration is sought;</P> <P>(2) Written proof that every such vehicle which is under the applicant's ownership or control, is in compliance with the vehicle safety requirements of the Act and these regulations; and</P> <P>(3) Written proof that every such vehicle is in compliance with the insurance requirements of the Act and these regulations;</P> <P>(e) Authorize the activity of driving a vehicle to transport a migrant or seasonal agricultural worker only upon receipt of (1) A doctor's certificate on the prescribed form, with an initial application for a Certificate of Registration or a Farm Labor Contractor Employee Certificate, and, when applying for a renewal, a new completed doctor's certificate if the previous doctor's certificate is more than three years old; and (2) evidence of a valid and appropriate license, as provided by State law, to operate the vehicle; and</P> <P>(f) Authorize the activity of housing a migrant agricultural worker only upon receipt of (1) A statement identifying each facility or real property to be used for housing a migrant agricultural worker during the period for which registration is sought; and (2) if the facility or real property is or will be owned or controlled by the applicant, written proof that the facility or real property complies with the applicable Federal and State standards of health and safety. Such written proof may be either a certification issued by a State or local health authority or other appropriate agency, or a copy of a written request for the inspection of a facility or real property made to the appropriate State or local agency at least forty-five days prior to the date on which the facility or real property is to be occupied by migrant agricultural workers, dated and signed by the applicant or other person who owns or controls the facility or real property. If housing authorization is issued based on a written request for inspection and the housing facility or real property is subsequently inspected and does not meet the appropriate standards, the housing authorization is null and void. Should the required written proof for housing authorization be unavailable at the time of filing an application, the applicant must attest in writing that the applicant will not house any migrant agricultural worker in any facility or real property owned or controlled by the applicant, until such applicant shall have submitted all necessary written proof and obtained a Farm Labor Contractor Certificate of Registration showing that housing in the facility or real property is authorized by the Secretary of Labor. In such event, if otherwise eligible, the applicant will be issued a Certificate of Registration without a housing authorization. This certificate may be amended to include an authorization to house at such time as the required proof is forthcoming.</P> <CITA>[48 FR 36741, Aug. 12, 1983, as amended at 61 FR 24865, May 16, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.50</SECTNO> <SUBJECT>Duration of certificate.</SUBJECT> <P>(a) <E T="03">Initial certificates of farm labor contractors and farm labor contractor employees.</E> (1) An initial certificate issued under the Act and these regulations shall expire twelve months from the <PRTPAGE P="24"/>date of issuance unless earlier suspended or revoked.</P> <P>(2) Certificates applied for during the period beginning April 14, 1983, and ending November 30, 1983, may be issued for a period of up to twenty-four months for the purpose of an orderly transition to registration under the Act.</P> <P>(3) Certificates issued to employees of farm labor contractors shall expire at the suspension, revocation or expiration of the farm labor contractor's Certificate of Registration under which such employee was authorized.</P> <P>(b) <E T="03">Certificate renewal of farm labor contractors and farm labor contractor employees.</E> (1) A certificate issued under the Act and these regulations may be temporarily extended by the filing of a properly completed and signed application with the Secretary at least thirty days prior to the expiration date. “Filing” may be accomplished by hand delivery, certified mail, or regular mail.</P> <P>(i) If the application for renewal is filed by regular mail or if it is delivered in person by the applicant, it must be <E T="03">received</E> by the Department of Labor or an authorized representative of the Department of Labor at least 30 days prior to the expiration date shown on the current certificate.</P> <P>(ii) If the application for renewal is filed by certified mail, it must be <E T="03">mailed</E> at least 30 days prior to the expiration date shown on the current certificate.</P> <FP>Where timely application for renewal has been filed, the authority to operate pursuant to a valid certificate under the Act and these regulations shall continue until the renewal application has been finally determined by the Secretary.</FP> <P>(2) A certificate issued under the Act and these regulations may be renewed by the Secretary for additional twelve-month periods or for periods in excess of twelve months but not in excess of twenty-four months.</P> <P>(3) Eligibility for renewals of certificates for more than twelve months under the Act and these regulations shall be limited to those farm labor contractors and farm labor contractor employees who have not been cited during the preceding five years for a violation of the Act or any regulation under the Act, or the Farm Labor Contractor Registration Act or any regulation under such Act.</P> <P>(c) <E T="03">Continuation of certain FLCRA certificates.</E> (1) Certificates issued under FLCRA, and in effect on April 14, 1983, that are valid for the services performed under FLCRA, will be continued in effect and be accepted as authorization to perform like services under the Act and these regulations for the remainder of calendar year 1983. Such certificates will be subject to the Act and these regulations with respect to determinations to suspend, revoke or refuse renewal.</P> <P>(2) Actions pending related to the suspension, revocation, or refusal to issue or renew FLCRA certificates shall continue through to a final determination. Any such certificate which is considered to be in effect under title 29 CFR 40.21 pending a final determination, will be considered valid under MSPA, provided application for a certificate under MSPA is made no later than November 30, 1983.</P> <CITA>[48 FR 36741, Aug. 12, 1983, as amended at 54 FR 13329, Mar. 31, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.51</SECTNO> <SUBJECT>Refusal to issue or to renew, or suspension or revocation of certificate.</SUBJECT> <P>The Secretary may suspend or revoke or refuse to issue or to renew a Certificate of Registration (including a Farm Labor Contractor Employee Certificate) if the applicant or holder:</P> <P>(a) Has knowingly made any misrepresentation in the application for such certificate;</P> <P>(b) Is not the real party in interest in the application or Certificate of Registration and the real party in interest is a person who has been refused issuance or renewal of a certificate, has had a certificate suspended or revoked, or does not qualify under this section for a certificate;</P> <P>(c) Has failed to comply with the Act or these regulations;</P> <P>(d) Has failed to pay any court judgment obtained by the Secretary or any other person under the Act or these regulations or under the Farm Labor Contractor Registration Act of 1963 or any regulation under such Act;</P> <P>(e) Has failed to comply with any final order issued by the Secretary as a <PRTPAGE P="25"/>result of a violation of the Act or these regulations or a violation of the Farm Labor Contractor Registration Act of 1963 or any regulation under such Act;</P> <P>(f) Has been convicted within the preceding five years:</P> <P>(1) Of any crime under State or Federal law relating to gambling, or to the sale, distribution or possession of alcoholic beverages, in connection with or incident to any farm labor contracting activities, or</P> <P>(2) Of any felony under State or Federal law involving robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, assault which inflicts grievous bodily injury, prostitution, peonage, or smuggling or harboring individuals who have entered the United States illegally.</P> <P>(g) Has been found to have violated paragraph (1) or (2) of section 274A(a) of the Immigration and Nationality Act (INA) by hiring, recruiting, or referring for a fee, for employment in the United States, (1) An alien knowing the alien is an unauthorized alien as defined in section 274A(h)(3) of INA with respect to such employment, or (2) an individual without complying with the requirements concerning verification of the person's identity and employment authorization as stated in section 274A(b) of INA.</P> <CITA>[48 FR 36741, Aug. 12, 1983, as amended at 54 FR 13329, Mar. 31, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.52</SECTNO> <SUBJECT>Right to hearing.</SUBJECT> <P>Any applicant or holder who desires an administrative hearing on the determination to refuse to issue or to renew, or to suspend or to revoke, a Certificate of Registration or a Farm Labor Contractor Employee Certificate of Registration, shall make a request in accordance with § 500.212, no later than thirty (30) days after service of the notice referred to in § 500.210.</P> </SECTION> <SECTION> <SECTNO>§ 500.53</SECTNO> <SUBJECT>Nontransfer of certificate.</SUBJECT> <P>A Certificate of Registration may not be transferred or assigned.</P> </SECTION> <SECTION> <SECTNO>§ 500.54</SECTNO> <SUBJECT>Change of address.</SUBJECT> <P>During the period for which the Certificate of Registration or Employee Certificate is in effect, each farm labor contractor or farm labor contractor employee shall provide to the Secretary, within thirty (30) days, a notice of each change of permanent place of residence in accordance with § 500.215.</P> </SECTION> <SECTION> <SECTNO>§ 500.55</SECTNO> <SUBJECT>Changes to or amendments of certificate authority.</SUBJECT> <P>(a) During the period for which the Certificate of Registration is in effect, a farm labor contractor must apply to the Secretary to amend the Certificate of Registration whenever he intends to:</P> <P>(1) Engage in another farm labor contracting activity;</P> <P>(2) Use, or cause to be used, another vehicle than that covered by the certificate to transport any migrant or seasonal agricultural worker; or</P> <P>(3) Use, or cause to be used, another real property or facility to house any migrant agricultural worker than that covered by the certificate.</P> <P>(b) Whenever another vehicle or housing facility or real property is or will be owned, operated, or controlled by the farm labor contractor, the farm labor contractor must submit the appropriate information to obtain transportation, driving or housing authorization, as applicable, as described in § 500.48, within 10 days after the contractor obtains or learns of the intended use of such vehicle or housing facility or real property.</P> <P>(c) Notwithstanding submission of the appropriate information, the farm labor contractor must comply with all</P> <FP>applicable motor safety, insurance, and housing safety and health provisions of the Act and these regulations. With regard to housing, the farm labor contractor must submit the appropriate housing documentation as well as comply with the housing safety and health provisions of the Act and these regulations, prior to occupancy by a migrant agricultural worker.</FP> </SECTION> <SECTION> <SECTNO>§ 500.56</SECTNO> <SUBJECT>Replacement of Certificate of Registration or Farm Labor Contractor Employee Certificate.</SUBJECT> <P>If a Certificate of Registration or a Farm Labor Contractor Employee Certificate is lost or destroyed, a duplicate certificate may be obtained by the submission to the regional office that issued it or to any regional office of the Wage and Hour Division, Employment <PRTPAGE P="26"/>Standards Administration, of a written statement explaining its loss or destruction, indicating where the original application was filed and requesting that a duplicate be issued.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Additional Obligations of Farm Labor Contractors and Farm Labor Contractor Employees</HD> <SECTION> <SECTNO>§ 500.60</SECTNO> <SUBJECT>Farm labor contractors' recruitment, contractual and general obligations.</SUBJECT> <P>The Act imposes certain specific recruitment, contractual and general obligations on farm labor contractors and farm labor contractor employees. The contractor is responsible for any violations under the Act committed by his employee. Each of the following obligations applies to both farm labor contractors and farm labor contractor employees.</P> <P>(a) Each farm labor contractor shall provide to any other farm labor contractor and to any agricultural employer and agricultural association to which such farm labor contractor has furnished any migrant or seasonal agricultural worker, copies of all records for that place of employment which such farm labor contractor is required to retain for each worker furnished or supplied. The recipient of these records shall keep them for a period of three years.</P> <P>(b) Each farm labor contractor, without regard to any other provisions of this Act, shall obtain at each place of employment and make available for inspection to every worker he furnishes for employment, a written statement of the conditions of such employment as described in sections 201(b) and 301(b) of the Act and §§ 500.75 and 500.76 of these regulations. As with the written disclosure statements under §§ 500.76 and 500.77, these statements must be provided to the workers in English or, as necessary and reasonable, in Spanish or another language common to migrant or seasonal agricultural workers who are not fluent in English.</P> <P>(c)(1) No farm labor contractor shall violate, without justification, the terms of any written agreements made with an agricultural employer or an agricultural association pertaining to any contracting activity or worker protection under the Act. Normally, “without justification” would not include situations in which failure to comply with the terms of any written agreements was directly attributable to Acts of God, due to conditions beyond the control of the person or to conditions which he could not reasonably foresee.</P> <P>(2) Written agreements do not relieve a farm labor contractor of any responsibility that such contractor would otherwise have under the Act and these regulations.</P> <P>(d) All payroll records made by the farm labor contractor must be retained by him for a period of three years.</P> </SECTION> <SECTION> <SECTNO>§ 500.61</SECTNO> <SUBJECT>Farm labor contractors must comply with all worker protections and all other statutory provisions.</SUBJECT> <P>Every farm labor contractor must comply with all of the provisions of titles I through V of the Act and all of the subparts of these regulations, unless subject to a specific statutory exemption. In addition to complying with all of the standards stated in subparts A and B of these regulations, every farm labor contractor must comply with each provision stated in subpart C and the motor vehicle safety and insurance and housing standards stated in subpart D.</P> </SECTION> <SECTION> <SECTNO>§ 500.62</SECTNO> <SUBJECT>Obligations of a person holding a valid Farm Labor Contractor Employee Certificate of Registration.</SUBJECT> <P>Any person holding a valid Farm Labor Contractor Employee Certificate of Registration in accordance with the Act and these regulations is required to comply with the Act and these regulations to the same extent as if said person had been required to obtain a Certificate of Registration in such person's own name as a farm labor contractor.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Worker Protections</HD> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTION> <SECTNO>§ 500.70</SECTNO> <SUBJECT>Scope of worker protections.</SUBJECT> <P>(a) <E T="03">General.</E> The Act provides protections for migrant and seasonal agricultural workers irrespective of whether <PRTPAGE P="27"/>they are employed by a farm labor contractor, an agricultural employer or an agricultural association, or, in the case where there is joint responsibility, by more than one of these persons. The Act's provisions include standards relating to vehicle safety, housing safety and health, disclosure of wages, hours and other conditions of employment, and recordkeeping. When any person not otherwise exempt from the Act recruits, solicits, hires, employs, furnishes or transports workers, that person is required to comply with the applicable protective provisions of the Act. In addition, any person not specifically exempt from coverage of the Act (irrespective of whether that person is an agricultural employer, an agricultural association or farm labor contractor) who owns or controls a facility or real property which is used as housing for any migrant agricultural workers must ensure that the facility or real property complies with all substantive Federal and State safety and health standards made applicable to that type of housing. (See § 500.132)</P> <P>(b) <E T="03">Wage related protections.</E> Joint employment under the Fair Labor Standards Act, which establishes responsibility for the maintenance of payroll records, payment of wages and posting of notices under that law, is joint employment under MSPA for establishing responsibility for the maintenance of records, payment of wages and the posting of required posters under MSPA. In such joint employment situations the responsibility for assuring these MSPA protections may be carried out by one of the joint employers. While under a joint employment relationship all joint employers are equally responsible for assuring that the appropriate protections are provided, the creation of such a joint employment relationship does not also require unnecessary duplication of effort as, for example, in relation to the posting of posters (see §§ 500.75(e) and 500.76(e)) or the provision of an itemized written statement of the worker's pay (see § 500.80(d)). Failure to provide protections coming within the joint employment relationship, however, will result in all joint employers being responsible for that failure.</P> <P>(c) <E T="03">Transportation related protections.</E> Responsibility for compliance with the motor vehicle safety and insurance provisions of section 401 of the Act and §§ 500.100 through 500.128 of these regulations is imposed upon the person or persons using or causing to be used, any vehicle for transportation of migrant or seasonal agricultural workers. As stated in these regulations, the transportation safety provisions do not include certain car pooling arrangements. Additionally, these regulations do not impose responsibility on an agricultural employer or agricultural association for a farm labor contractor's failure to adhere to the safety provisions provided in these regulations when the farm labor contractor is providing the vehicles and directing their use. However, when an agricultural employer or agricultural association specifically directs or requests a farm labor contractor to use the contractor's vehicle to carry out a task for the agricultural employer or agricultural association, such direction constitutes causing the vehicle to be used and the agricultural employer or agricultural association is jointly responsible with the farm labor contractor for assuring that the vehicle meets the insurance, and safety and health provisions of these regulations. In all cases a person using a farm labor contractor is required to take reasonable steps to determine that the vehicle used by the farm labor contractor is authorized to be used for transportation as prescribed in section 402 of the Act and § 500.71 of these regulations.</P> <P>(d) <E T="03">Housing related protections.</E> Responsibility for compliance with the housing safety and health provisions of section 203 of the Act and §§ 500.130 through 500.135 of these regulations is imposed upon the person (or persons) who owns or controls a facility or real property used as housing for migrant agricultural workers. Any agricultural employer or agricultural association which has a farm labor contractor operate housing which it owns or controls is responsible, as well as the farm labor contractor, for insuring compliance with the housing safety and health provisions of these regulations. When the owner or operator of the housing is not an agricultural employer, agricultural <PRTPAGE P="28"/>association or farm labor contractor, the owner is responsible for that housing meeting the safety and health provisions under the Act and these regulations. This is subject to the exclusion stated in § 500.131 of these regulations which provides that the housing safety and health requirements do not apply to any person who, in the ordinary course of that person's business, regularly provides housing on a commercial basis to the general public and who provides housing to any migrant agricultural worker of the same character and on the same or comparable terms and conditions as provided to the general public.</P> </SECTION> <SECTION> <SECTNO>§ 500.71</SECTNO> <SUBJECT>Utilization of only registered farm labor contractors.</SUBJECT> <P>The Act prohibits any person from utilizing the services of a farm labor contractor to supply migrant or seasonal agricultural workers without first taking reasonable steps to determine that the farm labor contractor possesses a valid Certificate of Registration, issued pursuant to the Act, which authorizes the activity for which the contractor is to be utilized. This prohibition also applies to a farm labor contractor who wishes to utilize the services of another farm labor contractor (see § 500.41). In making the determination about a contractor's registration status, a person may rely upon the contractor's possession of a Certificate of Registration which on its face is valid and which authorizes the activity for which the contractor is utilized. A person has the alternative to confirm the contractor's registration through the central registry maintained by the United States Department of Labor.</P> </SECTION> <SECTION> <SECTNO>§ 500.72</SECTNO> <SUBJECT>Agreements with workers.</SUBJECT> <P>(a) The Act prohibits farm labor contractors, agricultural employers and agricultural associations from violating, without justification, the terms of any working arrangements they have made with migrant or seasonal agricultural workers. Normally, “without justification” would not include situations in which failure to comply with the terms of any working arrangements was directly attributable to acts of God, due to conditions beyond the control of the person or to conditions which he could not reasonably foresee.</P> <P>(b) Written agreements do not relieve any person of any responsibility that the person would otherwise have under the Act or these regulations.</P> </SECTION> <SECTION> <SECTNO>§ 500.73</SECTNO> <SUBJECT>Required purchase of goods or services solely from any person prohibited.</SUBJECT> <P>The Act prohibits a farm labor contractor, agricultural employer or agricultural association from requiring a migrant or seasonal agricultural worker to purchase goods or services solely from such farm labor contractor, agricultural employer, or agricultural association, or any other person acting as an agent for any person subject to this prohibition.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Recruiting, Hiring and Providing Information to Migrant Agricultural Workers</HD> <SECTION> <SECTNO>§ 500.75</SECTNO> <SUBJECT>Disclosure of information.</SUBJECT> <P>(a) Where disclosure is required, Department of Labor optional forms may be used to satisfy the requirements of disclosure under the Act.</P> <P>(b) Each farm labor contractor, agricultural employer, and agricultural association which recruits any migrant agricultural worker shall ascertain to the best of his ability and disclose, in writing to the extent that he has obtained such information, to such worker at the time of recruitment, the following information:</P> <P>(1) The place of employment (with as much specificity as practical, such as the name and address of the employer or the association);</P> <P>(2) The wage rates (including piece rates) to be paid;</P> <P>(3) The crops and kinds of activities on which the worker may be employed;</P> <P>(4) The period of employment;</P> <P>(5) The transportation, housing, and any other employee benefits to be provided, if any, and any costs to be charged for each of them;</P> <P>(6) Whether state workers' compensation or state unemployment insurance is provided:</P> <P>(i) If workers' compensation is provided, the required disclosure must include the name of the workers' compensation insurance carrier, the <PRTPAGE P="29"/>name(s) of the policyholder(s), the name and telephone number of each person who must be notified of an injury or death, and the time period within which such notice must be given.</P> <P>(ii) The information requirement in paragraph (b)(6)(i) of this section may be satisfied by giving the worker a photocopy of any workers' compensation notice required by State law;.</P> <P>(7) The existence of any strike or other concerted work stoppage, slowdown, or interruption of operations by employees at the place of employment; and</P> <P>(8) The existence of any arrangements with any owner or agent of any establishment in the area of employment under which the farm labor contractor, the agricultural employer, or the agricultural association is to receive a commission or any other benefit resulting from any sales by such establishment to the workers.</P> <P>(c) Each farm labor contractor, agricultural employer and agricultural association which employs any migrant agricultural worker shall post (and maintain) in a conspicuous place at the place of employment a poster provided by the Secretary of Labor, which sets out the rights and protections for workers required under the Act.</P> <P>(d) The employer (other than a farm labor contractor) of any migrant agricultural worker, shall provide at the place of employment on request of the worker, a written statement of the conditions of employment. A farm labor contractor shall provide such information in accordance with § 500.60(b) of these regulations.</P> <P>(e) In a joint employment situation, each employer is equally responsible for displaying and maintaining the poster and for responding to worker requests for written statements of the conditions of employment which are made during the course of employment. This joint responsibility, however, does not require needless duplication, such as would occur if each employer posted the same poster or provided the same written statement with respect to the same employment conditions. Failure to provide the information required by a joint employment relationship, however, will result in all joint employers being responsible for that failure.</P> <P>(f) Each farm labor contractor, agricultural employer and agricultural association which provides housing for any migrant agricultural worker shall post in a conspicuous place (at the site of the housing) or present in the form of a written statement to the worker the following information on the terms and conditions of occupancy of such housing, if any:</P> <P>(1) The name and address of the farm labor contractor, agricultural employer</P> <FP>or agricultural association providing the housing;</FP> <P>(2) The name and address of the individual in charge of the housing;</P> <P>(3) The mailing address and phone number where persons living in the housing facility may be reached;</P> <P>(4) Who may live at the housing facility;</P> <P>(5) The charges to be made for housing;</P> <P>(6) The meals to be provided and the charges to be made for them;</P> <P>(7) The charges for utilities; and</P> <P>(8) Any other charges or conditions of occupancy.</P> <P>(g) If the terms and conditions of occupancy are posted, the poster shall be displayed and maintained during the entire period of occupancy. If the terms and conditions of occupancy are disclosed to the worker through a statement (rather than through a posting), such statement shall be provided to the worker prior to occupancy. Department of Labor optional forms may be used to satisfy this requirement.</P> <CITA>[48 FR 36741, Aug. 12, 1983, as amended at 61 FR 24866, May 16, 1996]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hiring and Providing Information to Seasonal Agricultural Workers</HD> <SECTION> <SECTNO>§ 500.76</SECTNO> <SUBJECT>Disclosure of information.</SUBJECT> <P>(a) Where disclosure is required, Department of Labor optional forms may be used to satisfy the requirements of disclosure under the Act.</P> <P>(b) Each farm labor contractor, agricultural employer and agricultural association, which recruits any seasonal agricultural worker for employment on a farm or ranch to perform field work <PRTPAGE P="30"/>related to planting, cultivating or harvesting operations, shall ascertain and, upon request, disclose in writing the following information to such worker when an offer of employment is made:</P> <P>(1) The place of employment (with as much specificity as practical, such as the name and address of the employer or the association);</P> <P>(2) The wage rates (including piece rates) to be paid;</P> <P>(3) The crops and kinds of activities on which the worker may be employed;</P> <P>(4) The period of employment;</P> <P>(5) The transportation and any other employee benefits to be provided, if any, and any costs to be charged for each of them;</P> <P>(6) Whether state workers' compensation or state unemployment insurance is provided:</P> <P>(i) If workers' compensation is provided, the required disclosure must include the name of the workers' compensation insurance carrier, the name(s) of the policyholder(s), the name and telephone number of each person who must be notified of an injury or death, and the time period within which such notice must be given.</P> <P>(ii) The information requirement in paragraph (b)(6)(i) of this section may satisfied giving the worker a photocopy of any workers' compensation notice required by State law;</P> <P>(7) The existence of any strike or other concerted work stoppage, slowdown, or interruption of operations by employees at the place of employment; and</P> <P>(8) The existence of any arrangements with any owner or agent of any establishment in the area of employment under which the farm labor contractor, the agricultural employer, or the agricultural association is to receive a commission or any other benefit resulting from any sales by such establishment to the workers.</P> <P>(c) Each farm labor contractor, agricultural employer and agricultural association which recruits any seasonal agricultural worker for employment through the use of day-haul operation in canning, packing, ginning, seed conditioning or related research, or processing operations, shall ascertain and disclose in writing to the worker at the time of recruitment the information on employment conditions set out in paragraph (b) of this section.</P> <P>(d)(1) Each farm labor contractor, agricultural employer and agricultural association which employs any seasonal agricultural worker shall post (and maintain) at the place of employment in a conspicuous place readily accessible to the worker a poster provided by the Secretary of Labor which sets out the rights and protections for such worker required under the Act.</P> <P>(2) Such employer shall provide, on request of the worker, a written statement of the information described in paragraph (b) of this section.</P> <P>(e) In a joint employment situation, each employer is equally responsible for displaying and maintaining the poster and for responding to worker requests for written statements of the conditions of employment which are made during the course of employment. This joint responsibility, however, does not require needless duplication, such as would occur if each employer posted the same poster or provided the same written statement with respect to the same employment conditions.</P> <CITA>[48 FR 36741, Aug. 12, 1983, as amended at 61 FR 24866, May 16, 1996]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Employment Information Furnished</HD> <SECTION> <SECTNO>§ 500.77</SECTNO> <SUBJECT>Accuracy of information furnished.</SUBJECT> <P>No farm labor contractor, agricultural employer or agricultural association shall knowingly provide false or misleading information on the terms, conditions or existence of agricultural employment and housing required to be disclosed by the Act and these regulations to any migrant or seasonal agricultural worker.</P> </SECTION> <SECTION> <SECTNO>§ 500.78</SECTNO> <SUBJECT>Information in foreign language.</SUBJECT> <P>Each farm labor contractor, agricultural employer and agricultural association shall make all required written disclosures to the worker, including the written disclosures of the terms and conditions of occupancy of housing to be provided to any migrant worker, in English or, as necessary and reasonable, in Spanish or another language <PRTPAGE P="31"/>common to migrant or seasonal agricultural workers who are not fluent or literate in English. The Department of Labor shall make forms available in English, Spanish, Haitian-Creole and other languages, as necessary, which may be used in providing workers with such information.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Wages and Payroll Standards</HD> <SECTION> <SECTNO>§ 500.80</SECTNO> <SUBJECT>Payroll records required.</SUBJECT> <P>(a) Each farm labor contractor, agricultural employer and agricultural association which employs any migrant or seasonal agricultural worker shall make and keep the following records with respect to each worker including the name, permanent address, and Social Security number:</P> <P>(1) The basis on which wages, are paid;</P> <P>(2) The number of piecework units earned, if paid on a piecework basis;</P> <P>(3) The number of hours worked;</P> <P>(4) The total pay period earnings;</P> <P>(5) The specific sums withheld and the purpose of each sum withheld; and</P> <P>(6) The net pay.</P> <P>(b) Each farm labor contractor, agricultural employer and agricultural association which employs any migrant or seasonal agricultural worker shall preserve all payroll records with respect to each such worker for a period of three years.</P> <P>(c) When a farm labor contractor furnishes any migrant or seasonal agricultural worker, and the farm labor contractor is the employer, the farm labor contractor must furnish the agricultural employer, agricultural association or other farm labor contractor to whom the workers are furnished, a copy of all payroll records required under paragraph (a) of this section which the farm labor contractor has made regarding such worker for that place of employment. The person receiving such records shall maintain them for a period of three years.</P> <P>(d) In addition to making records of this payroll information, the farm labor contractor, agricultural employer and agricultural association shall provide each migrant or seasonal agricultural worker employed with an itemized written statement of this information at the time of payment for each pay period which must be no less often than every two weeks (or semi-monthly). Such statement shall also include the employer's name, address, and employer identification number assigned by the Internal Revenue Service. This responsibility does not require needless duplication such as would occur if each provided the worker with a written itemized statement for the same work.</P> </SECTION> <SECTION> <SECTNO>§ 500.81</SECTNO> <SUBJECT>Payment of wages when due.</SUBJECT> <P>Each farm labor contractor, agricultural employer and agricultural association which employs any migrant or seasonal agricultural worker must pay the wages owed such worker when due. In meeting this responsibility, the farm labor contractor, agricultural employer and agricultural association shall pay the worker no less often than every two weeks (or semi-monthly).</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Motor Vehicle Safety and Insurance for Transportation of Migrant and Seasonal Agricultural Workers, Housing Safety and Health for Migrant Workers</HD> <SUBJGRP> <HD SOURCE="HED">Motor Vehicle Safety</HD> <SECTION> <SECTNO>§ 500.100</SECTNO> <SUBJECT>Vehicle safety obligations.</SUBJECT> <P>(a) <E T="03">General obligations.</E> Each farm labor contractor, agricultural employer and agricultural association which uses, or causes to be used, any vehicle to transport a migrant or seasonal agricultural worker shall ensure that such vehicle conforms to vehicle safety standards prescribed by the Secretary of Labor under the Act and with other applicable Federal and State safety standards. Each farm labor contractor, agricultural employer and agricultural association shall also ensure that each driver of any such vehicle has a currently valid motor vehicle operator's permit or license, as provided by applicable State law, to operate the vehicle.</P> <P>(b) <E T="03">Proof of compliance with vehicle safety standards.</E> Prima facie evidence that safety standards have been met will be shown by the presence of a current State vehicle inspection sticker. Such sticker will not, however, relieve <PRTPAGE P="32"/>the farm labor contractor, agricultural employer or agricultural association from responsibility for maintaining the vehicle in accordance with § 500.104 or § 500.105, as applicable.</P> <P>(c) <E T="03">Uses or causes to be used.</E> The term “uses or causes to be used” as set forth in paragraph (a) of this section does not include carpooling arrangements made by the workers themselves, using one of the workers' own vehicles. However, carpooling does not include any transportation arrangement in which a farm labor contractor participates or which is specifically directed or requested by an agricultural employer or an agricultural association.</P> </SECTION> <SECTION> <SECTNO>§ 500.101</SECTNO> <SUBJECT>Promulgation and adoption of vehicle standards.</SUBJECT> <P>(a) <E T="03">General.</E> All transportation of migrant and seasonal agricultural workers, whether on the farm or on the road, shall be subject to the vehicle safety standards of the Act, except for activities under the circumstances set out in § 500.103.</P> <P>(b) <E T="03">Compliance required.</E> Any violation of the standards promulgated by the Secretary in § 500.104 or adopted by the Secretary in § 500.105 shall be a violation of the Act and these regulations.</P> <P>(c) <E T="03">Development of Department of Labor Standards.</E> In developing the regulations in § 500.104, the Secretary has considered among other factors: (1) The type of vehicle used, (2) the passenger capacity of the vehicle, (3) the distance which such workers will be carried in the vehicle, (4) the type of roads and highways on which such workers will be carried in the vehicle, and (5) the extent to which a proposed standard would cause an undue burden on agricultural employers, agricultural associations, or farm labor contractors.</P> <P>(d) <E T="03">Adoption of Department of Transportation (DOT) Standards.</E> In accordance with section 401(b)(2)(C) of the Act, the Secretary has adopted in § 500.105 of these regulations, the DOT standards, without regard to the mileage and boundary limitations established in 49 U.S.C. 3102(c).</P> </SECTION> <SECTION> <SECTNO>§ 500.102</SECTNO> <SUBJECT>Applicability of vehicle safety standards.</SUBJECT> <P>(a) Any passenger automobile or station wagon used or caused to be used by any farm labor contractor, agricultural employer or agricultural association to transport any migrant or seasonal agricultural worker shall meet the vehicle safety standards prescribed in § 500.104.</P> <P>(b) Any vehicle, other than a passenger automobile or station wagon, used or caused to be used by any farm labor contractor, agricultural employer or agricultural association to transport any migrant or seasonal agricultural worker pursuant to a day-haul operation shall be subject to the safety standards prescribed under § 500.105.</P> <P>(c) Any vehicle, other than a passenger automobile or station wagon, which has been or is being used or caused to be used for any trip of a distance greater than 75 miles by a farm labor contractor, agricultural employer or agricultural association to transport any migrant or seasonal agricultural worker, shall be subject to the safety standards prescribed under § 500.105. One trip may have numerous intermediate stops.</P> <P>(d) Any vehicle, other than a passenger automobile or station wagon, used or caused to be used by any farm labor contractor, agricultural employer or agricultural association to transport any migrant or seasonal agricultural worker in any manner not addressed by paragraphs (a), (b), or (c) of this section shall meet the vehicle safety standards prescribed in § 500.104.</P> <P>(e) The use or intended use of a vehicle, other than a passenger automobile or station wagon, for transportation of the type identified in § 500.102(b) or § 500.102(c) will make the vehicle subject to the standards prescribed under § 500.105, so long as the vehicle is used for transportation subject to the Act and these regulations.</P> <P>(f) Any pickup truck used only for transportation subject to § 500.104 when transporting passengers only within the cab shall be treated as a station wagon.</P> <P>(g) Pursuant to section 401(b)(2)(C) of the Act, standards prescribed by the Secretary shall be in addition to, and shall not supersede nor modify, any standards prescribed under part II of the Interstate Commerce Act and any successor provision of subtitle IV of <PRTPAGE P="33"/>title 49, U.S. Code or the regulations issued thereunder which is independently applicable to transportation to which this section applies. A violation of any such standard shall also constitute a violation of the Act and these regulations.</P> <CITA>[48 FR 36741, Aug. 12, 1983; 48 FR 38380, Aug. 23, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.103</SECTNO> <SUBJECT>Activities not subject to vehicle safety standards.</SUBJECT> <P>(a) <E T="03">Agricultural machinery and equipment excluded.</E> Vehicle safety standards or insurance requirements issued under the Act and these regulations do not apply to the transportation of any seasonal or migrant agricultural worker on a tractor, combine, harvester, picker, other similar machinery and equipment while such worker is actually engaged in the planting, cultivating, or harvesting of any agricultural commodity or the care of livestock or poultry. This exclusion applies only to workers carrying out these activities on such machinery and equipment or being engaged in transportation incidental thereto. The exclusion does not include the use of such machinery for the transportation of any worker under any other circumstances.</P> <P>(b) <E T="03">Exclusion for immediate family transporting family members.</E> The standards of this subpart do not apply to an individual migrant or seasonal agricultural worker when the only other occupants of that individual's vehicle consist of his immediate family members as defined in § 500.20(o).</P> <P>(c) <E T="03">Carpooling.</E> Vehicle safety standards or insurance requirements of the Act and these regulations do not apply to carpooling arrangements made by the workers themselves, using one of the workers' own vehicles and not specifically directed or requested by an agricultural employer or agricultural association. Carpooling, however, does not include any transportation arrangement in which a farm labor contractor participates.</P> <FP>(See also § 500.120)</FP> </SECTION> <SECTION> <SECTNO>§ 500.104</SECTNO> <SUBJECT>Department of Labor standards for passenger automobiles and station wagons and transportation of seventy-five miles or less.</SUBJECT> <P>Any farm labor contractor, agricultural employer or agricultural association providing transportation in passenger automobiles and station wagons and other vehicles used only for transportation as provided in § 500.102(a) and (d) shall comply with the following vehicle safety standards:</P> <P>(a) <E T="03">External lights.</E> Head lights, tail lights, stop lights, back-up lights, turn signals and hazard warning lights shall be operable.</P> <P>(b) <E T="03">Brakes.</E> Every vehicle shall be equipped with operable brakes for stopping and holding on an incline. Brake systems shall be free of leaks.</P> <P>(c) <E T="03">Tires.</E> Tires shall have at least</P> <FP>2/32 inch tread depth, and have no cracks/defects in the sidewall.</FP> <P>(d) <E T="03">Steering.</E> The steering wheel and associated mechanism shall be maintained so as to safely and accurately turn the vehicles.</P> <P>(e) <E T="03">Horn.</E> Vehicles shall have an operable air or electric horn.</P> <P>(f) <E T="03">Mirrors.</E> Mirrors shall provide the driver full vision of the sides and to the rear of the vehicle.</P> <P>(g) <E T="03">Windshields/windshield wipers.</E> Windshields and windows may not have cracks or opaque obstructions which obscure vision. Vehicles shall be equipped with windshield wipers that are operational to allow the operator full frontal vision in all weather conditions.</P> <P>(h) <E T="03">Fuel system.</E> Fuel lines and the fuel tank shall be free of leaks. The tank shall be fitted with a cap to securely cover the filling opening.</P> <P>(i) <E T="03">Exhaust system.</E> The exhaust system shall discharge carbon monoxide away from the passenger compartment and be free of leaks beneath the passenger compartment.</P> <P>(j) <E T="03">Ventilation.</E> Windows will be operational to allow fresh air to the occupants of the vehicle.</P> <P>(k) <E T="03">Safe loading.</E> Vehicles will not be driven when loaded beyond the manufacturer's gross vehicle weight rating.</P> <P>(l) <E T="03">Seats.</E> A seat securely fastened to the vehicle will be provided for each occupant or rider in, or on, any vehicle, except that transportation which is <PRTPAGE P="34"/>primarily on private farm roads will be excused from this requirement provided the total distance traveled does not exceed ten (10) miles, and so long as the trip begins and ends on a farm owned or operated by the same employer.</P> <P>(m) <E T="03">Handles and latches.</E> Door handles and latches shall be provided and maintained to allow exiting capability for vehicle occupants.</P> <P>(n) <E T="03">Passenger compartment.</E> Floor and sides of any part of the vehicle to be occupied by passengers must be free of openings, rusted areas or other defects which are likely to result in injury to passengers.</P> </SECTION> <SECTION> <SECTNO>§ 500.105</SECTNO> <SUBJECT>DOT standards adopted by the Secretary.</SUBJECT> <P>(a) Any farm labor contractor, agricultural employer or agricultural association providing transportation in vehicles other than passenger automobiles and station wagons used for transportation as provided in § 500.102 (b), (c), and (e) shall comply with the motor carrier safety standards listed in paragraph (b) of this section.</P> <P>(b) The Secretary for the purposes of this section has adopted from 49 CFR part 398 the following pertinent standards. (In adopting these standards, editorial changes necessitated by the Act and these regulations have been made to conform the language to these regulations):</P> <P>(1) <E T="03">Qualification of drivers or operators (Source: 49 CFR 398.3)</E>—(i) <E T="03">Compliance required.</E> Every person subject to this Act who drives a motor vehicle or is responsible for the hiring, supervision, training, assignment or dispatching of drivers shall comply and be conversant with the requirements of this section.</P> <P>(ii) <E T="03">Minimum physical requirements.</E> No such person shall drive, nor shall any such person require or permit any person to drive, any motor vehicle unless such person possesses the following minimum qualifications:</P> <P>(A) No loss of foot, leg, hand or arm,</P> <P>(B) No mental, nervous, organic, or functional disease, likely to interfere with safe driving.</P> <P>(C) No loss of fingers, impairment of use of foot, leg, fingers, hand or arm, or other structural defect or limitation, likely to interfere with safe driving.</P> <P>(D) <E T="03">Eyesight.</E> Visual acuity of at least 20/40 (Snellen) in each eye either without glasses or by correction with glasses; form field of vision in the horizontal meridian shall not be less than a total of 140 degrees; ability to distinguish colors red, green and yellow; drivers requiring correction by glasses shall wear properly prescribed glasses at all times when driving.</P> <P>(E) <E T="03">Hearing.</E> Hearing shall not be less than 10/20 in the better ear, for conversational tones, without a hearing aid.</P> <P>(F) <E T="03">Liquor, narcotics and drugs.</E> Shall not be addicted to the use of narcotics or habit forming drugs, or the excessive use of alcoholic beverages or liquors.</P> <P>(G) <E T="03">Initial and periodic physical examination of drivers.</E> No such person shall drive nor shall any such person require or permit any person to drive any motor vehicle unless within the immediately preceding 36-month period such person shall have been physically examined and shall have been certified in accordance with the provisions of paragraph (b)(1)(ii)(H) of this section by a licensed doctor of medicine or osteopathy as meeting the requirements of this subsection.</P> <P>(H) <E T="03">Certificate of physical examination.</E> Every person shall have in his files at his principal place of business for every driver employed or used by him a legible certificate of a licensed doctor of medicine or osteopathy based on a physical examination as required by paragraph (b)(1)(ii)(G) of this section or a legible photographically reproduced copy thereof, and every driver shall have in his possession while driving, such a certificate or a photographically reproduced copy thereof covering himself.</P> <P>(I) <E T="03">Doctor's certificate.</E> The doctor's certificate shall certify as follows:</P> <HD SOURCE="HD1">Doctor's Certificate</HD> <EXTRACT> <HD SOURCE="HD3">(Driver of Migrant Workers)</HD> <P>This is to certify that I have this day examined ______ in accordance with § 398.3(b) of the Federal Motor Carrier Safety Regulations of the Federal Highway Administration and that I find him</P> <P>Qualified under said rules □</P> <P>Qualified only when wearing glasses □<PRTPAGE P="35"/> </P> <P>I have kept on file in my office a completed examination.</P> <FP SOURCE="FP-DASH">(Date)</FP> <FP SOURCE="FP-DASH">(Place)</FP> <FP SOURCE="FP-DASH"/> <FP>(Signature of examining doctor)</FP> <FP SOURCE="FP-DASH"/> <FP>(Address of doctor)</FP> <FP SOURCE="FP-DASH"/> <FP>(Signature of driver)</FP> <FP SOURCE="FP-DASH"/> <FP>(Address of driver)</FP> </EXTRACT> <P>(iii) <E T="03">Minimum age and experience requirements.</E> No person shall drive, nor shall any person require or permit any person to drive, any motor vehicle unless such person possesses the following minimum qualifications:</P> <P>(A) <E T="03">Age.</E> Minimum age shall be 21 years.</P> <P>(B) <E T="03">Driving skill.</E> Experience in driving some type of motor vehicle (including private automobiles) for not less than one year, including experience throughout the four seasons.</P> <P>(C) <E T="03">Knowledge of regulations.</E> Familiarity with the rules and regulations prescribed in this part pertaining to the driving of motor vehicles.</P> <P>(D) <E T="03">Knowledge of English.</E> Every driver shall be able to read and speak the English language sufficiently to understand highway traffic signs and signals and directions given in English and to respond to official inquiries.</P> <P>(E) <E T="03">Driver's permit.</E> Possession of a valid permit qualifying the driver to operate the type of vehicle driven by him in the jurisdiction by which the permit is issued.</P> <P>(2) <E T="03">Driving of motor vehicles (Source: 49 CFR 398.4)</E>—(i) <E T="03">Compliance required.</E> Every person shall comply with the requirements of this section, shall instruct its officers, agents, representatives and drivers with respect thereto, and shall take such measures as are necessary to insure compliance therewith by such persons. All officers, agents, representatives, drivers, and employees of persons subject to this Act directly concerned with the management, maintenance, operation, or driving of motor vehicles, shall comply with and be conversant with the requirements of this section.</P> <P>(ii) <E T="03">Driving rules to be obeyed.</E> Every motor vehicle shall be driven in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated, unless such laws, ordinances and regulations are at variance with specific regulations of the Federal Highway Administration, which impose a greater affirmative obligation or restraint.</P> <P>(iii) [Reserved]</P> <P>(iv) <E T="03">Alcoholic beverages.</E> No driver shall drive or be required or permitted to drive a motor vehicle, be in active control of any such vehicle, or go on duty or remain on duty, when under the influence of any alcoholic beverage or liquor, regardless of its alcoholic content, nor shall any driver drink any such beverage or liquor while on duty.</P> <P>(v) <E T="03">Schedules to conform with speed limits.</E> No person shall permit nor require the operation of any motor vehicle between points in such period of time as would necessitate the vehicle being operated at speeds greater than those prescribed by the jurisdictions in or through which the vehicle is being operated.</P> <P>(vi) <E T="03">Equipment and emergency devices.</E> No motor vehicle shall be driven unless the driver thereof shall have satisfied himself that the following parts, accessories, and emergency devices are in good working order; nor shall any driver fail to use or make use of such parts, accessories, and devices when and as needed: </P> <EXTRACT> <FP SOURCE="FP-1">Service brakes, including trailer brake connections.</FP> <FP SOURCE="FP-1">Parking (hand) brake.</FP> <FP SOURCE="FP-1">Steering mechanism.</FP> <FP SOURCE="FP-1">Lighting devices and reflectors.</FP> <FP SOURCE="FP-1">Tires.</FP> <FP SOURCE="FP-1">Horn.</FP> <FP SOURCE="FP-1">Windshield wiper or wipers.</FP> <FP SOURCE="FP-1">Rear-vision mirror or mirrors.</FP> <FP SOURCE="FP-1">Coupling devices.</FP> <FP SOURCE="FP-1">Fire extinguisher, at least one properly mounted.</FP> <FP SOURCE="FP-1">Road warning devices, at least one red burning fusee and at least three flares (oil burning pot torches), red electric lanterns, or red emergency reflectors.</FP> </EXTRACT> <P>(vii) <E T="03">Safe loading</E>—(A) <E T="03">Distribution and securing of load.</E> No motor vehicle shall be driven nor shall any motor carrier permit or require any motor vehicle to be driven if it is so loaded, or if the load thereon is so improperly distributed or so inadequately secured, as to prevent its safe operation.<PRTPAGE P="36"/> </P> <P>(B) <E T="03">Doors, tarpaulins, tailgates and other equipment.</E> No motor vehicle shall be driven unless the tailgate, tailboard, tarpaulins, doors, all equipment and rigging used in the operation of said vehicle, and all means of fastening the load, are securely in place.</P> <P>(C) <E T="03">Interference with driver.</E> No motor vehicle shall be driven when any object obscures his view ahead, or to the right or left sides, or to the rear, or interferes with the free movement of his arms or legs, or prevents his free and ready access to the accessories required for emergencies, or prevents the free and ready exit of any person from the cab or driver's compartment.</P> <P>(D) <E T="03">Property on motor vehicles.</E> No vehicle transporting persons and property shall be driven unless such property is stowed in a manner which will assure: (<E T="03">1</E>) Unrestricted freedom of motion to the driver for proper operation of the vehicle; (<E T="03">2</E>) unobstructed passage to all exits by any person; and (<E T="03">3</E>) adequate protection to passengers and others from injury as a result of the displacement or falling of such articles.</P> <P>(E) <E T="03">Maximum passengers on motor vehicles.</E> No motor vehicle shall be driven if the total number of passengers exceeds the seating capacity which will be permitted on seats prescribed in § 500.105(b)(3)(vi). All passengers carried on such vehicle shall remain seated while the motor vehicle is in motion.</P> <P>(viii) <E T="03">Rest and meal stops.</E> Every person shall provide for reasonable rest stops at least once between meal stops. Meal stops shall be made at intervals not to exceed six hours and shall be for a period of not less than 30 minutes duration.</P> <P>(ix) <E T="03">Kinds of motor vehicles in which workers may be transported.</E> Workers may be transported in or on only the following types of motor vehicles: A bus, a truck with no trailer attached, or a semitrailer attached to a truck-tractor provided that no other trailer is attached to the semitrailer. Closed vans without windows or means to assure ventilation shall not be used.</P> <P>(x) <E T="03">Limitation on distance of travel in trucks.</E> Any truck when used for the transportation of migrant or seasonal agricultural workers, if such workers are being transported in excess of 600 miles, shall be stopped for a period of not less than eight consecutive hours either before or upon completion of 600 miles travel, and either before or upon completion of any subsequent 600 miles travel to provide rest for drivers and passengers.</P> <P>(xi) <E T="03">Lighting devices and reflectors.</E> No motor vehicle shall be driven when any of the required lamps or reflectors are obscured by the tailboard, by any and all lighting devices required pursuant to 49 U.S.C. 3102(c) shall be lighted during darkness or at any other time when there is not sufficient light to render vehicles and persons visible upon the highway at a distance of 500 feet.</P> <P>(xii) <E T="03">Ignition of fuel; prevention.</E> No driver or other person shall: (A) Fuel a motor vehicle with the engine running, except when it is necessary to run the engine to fuel the vehicle; (B) smoke or expose any open flame in the vicinity of a vehicle being fueled; (C) fuel a motor vehicle unless the nozzle of the fuel hose is continuously in contact with the intake pipe of the fuel tank; (D) permit any other person to engage in such activities as would be likely to result in fire or explosion.</P> <P>(xiii) <E T="03">Reserve fuel.</E> No supply of fuel for the propulsion of any motor vehicle or for the operation of any accessory thereof shall be carried on the motor vehicle except in a properly mounted fuel tank or tanks.</P> <P>(xiv) <E T="03">Driving by unauthorized person.</E> Except in case of emergency, no driver shall permit a motor vehicle to which he is assigned to be driven by any person not authorized to drive such vehicle.</P> <P>(xv) <E T="03">Protection of passengers from weather.</E> No motor vehicle shall be driven while transporting passengers unless the passengers therein are protected from inclement weather conditions such as rain, snow, or sleet, by use of the top or protective devices required by § 500.105(b)(3)(vi)(E).</P> <P>(xvi) <E T="03">Unattended vehicles; precautions.</E> No motor vehicle shall be left unattended by the driver until the parking brake has been securely set, the wheels chocked, and all reasonable precautions have been taken to prevent the movement of such vehicle.</P> <P>(xvii) <E T="03">Railroad grade crossings; stopping required; sign on rear of vehicle.</E> <PRTPAGE P="37"/>Every motor vehicle shall, upon approaching any railroad grade crossing, make a full stop not more than 50 feet, nor less than 15 feet from the nearest rail of such railroad grade crossing, and shall not proceed until due caution has been taken to ascertain that the course is clear; except that a full stop need not be made at:</P> <P>(A) A street car crossing within a business or residence district of a municipality;</P> <P>(B) A railroad grade crossing where a police officer or a traffic-control signal (not a railroad flashing signal) directs traffic to proceed:</P> <P>(C) An abandoned or exempted grade crossing which is clearly marked as such by or with the consent of the proper state authority, when such marking can be read from the driver's position.</P> <FP>All such motor vehicles shall display a sign on the rear reading, “This Vehicle Stops at Railroad Crossings.”</FP> <P>(3) <E T="03">Parts and accessories necessary (Source: 49 CFR 398.5)</E>—(i) <E T="03">Compliance.</E> Every person and its officers, agents, drivers, representatives and employees directly concerned with the installation and maintenance of equipment and accessories shall comply and be conversant with the requirements and specifications of this part, and no person shall operate any motor vehicle, or cause or permit it to be operated, unless it is equipped in accordance with said requirements and specifications.</P> <P>(ii) <E T="03">Lighting devices.</E> Every motor vehicle shall be equipped with the lighting devices and reflectors required pursuant to 49 U.S.C. 3102 (c).</P> <P>(iii) <E T="03">Brakes.</E> Every motor vehicle shall be equipped with brakes as required pursuant to 49 U.S.C. 3102 (c).</P> <P>(iv) <E T="03">Coupling devices; fifth wheel mounting and locking.</E> The lower half of every fifth wheel mounted on any truck-tractor or dolly shall be securely affixed to the frame thereof by U-bolts of adequate size, securely tightened, or by other means providing at least equivalent security. Such U-bolts shall not be of welded construction. The installation shall be such as not to cause cracking, warping, or deformation of the frame. Adequate means shall be provided positively to prevent the shifting of the lower half of a fifth wheel on the frame to which it is attached. The upper half of every fifth wheel shall be fastened to the motor vehicle with at least the security required for the securing of the lower half to a truck-tractor or dolly. Locking means shall be provided in every fifth wheel mechanism including adapters when used, so that the upper and lower halves may not be separated without the operation of a positive manual release. A release mechanism operated by the driver from the cab shall be deemed to meet this requirement. On fifth wheels designed and constructed so as to be readily separable, the fifth wheel locking devices shall apply automatically on coupling for any motor vehicle the date of manufacture of which is subsequent to December 31, 1952.</P> <P>(v) <E T="03">Tires.</E> Every motor vehicle shall be equipped with tires of adequate capacity to support its gross weight. No motor vehicle shall be operated on tires which have been worn so smooth as to expose any tread fabric or which have any other defect likely to cause failure. No vehicle shall be operated while transporting passengers while using any tire which does not have tread configurations on that part of the tire which is in contact with the road surface. No vehicle transporting passengers shall be operated with regrooved, re-capped, or re-treaded tires on front wheels.</P> <P>(vi) <E T="03">Passenger compartment.</E> Every motor vehicle transporting passengers, other than a bus, shall have a passenger compartment meeting the following requirements:</P> <P>(A) <E T="03">Floors.</E> A substantially smooth floor, without protruding obstructions more than two inches high, except as are necessary for securing seats or other devices to the floor, and without cracks or holes.</P> <P>(B) <E T="03">Sides.</E> Side walls and ends above the floor at least 60 inches high, by attachment of sideboards to the permanent body construction if necessary. Stake body construction shall be construed to comply with this requirement only if all six-inch or larger spaces between stakes are suitably closed to prevent passengers from falling off the vehicle.<PRTPAGE P="38"/> </P> <P>(C) <E T="03">Nails, screws, splinters.</E> The floor and the interior of the sides and ends of the passenger-carrying space shall be free of inwardly protruding nails, screws, splinters, or other projecting objects likely to be injurious to passengers or their apparel.</P> <P>(D) <E T="03">Seats.</E> A seat shall be provided for each worker transported. The seats shall be: Securely attached to the vehicle during the course of transportation; not less than 16 inches nor more than 19 inches above the floor; at least 13 inches deep; equipped with backrests extending to a height of at least 36 inches above the floor, with at least 24 inches of space between the backrests or between the edges of the opposite seats when face to face; designed to provide at least 18 inches of seat for each passenger; without cracks more than two inches wide, and the exposed surfaces, if made of wood, planed or sanded smooth and free of splinters.</P> <P>(E) <E T="03">Protection from weather.</E> Whenever necessary to protect the passengers from inclement weather conditions, be equipped with a top at least 80 inches high above the floor and facilities for closing the sides and ends of the passenger-carrying compartment. Tarpaulins or other such removable devices for protection from the weather shall be secured in place.</P> <P>(F) <E T="03">Exit.</E> Adequate means of ingress and egress to and from the passenger space shall be provided on the rear or at the right side. Such means of ingress and egress shall be at least 18 inches wide. The top and the clear opening shall be at least 60 inches high, or as high as the side wall of the passenger space if less than 60 inches. The bottom shall be at the floor of the passenger space.</P> <P>(G) <E T="03">Gates and doors.</E> Gates or doors shall be provided to close the means of ingress and egress and each such gate or door shall be equipped with at least one latch or other fastening device of such construction as to keep the gate or door securely closed during the course of transportation; and readily operative without the use of tools.</P> <P>(H) <E T="03">Ladders or steps.</E> Ladders or steps for the purpose of ingress or egress shall be used when necessary. The maximum vertical spacing of footholds shall not exceed 12 inches, except that the lowest step may be not more than 18 inches above the ground when the vehicle is empty.</P> <P>(I) <E T="03">Hand holds.</E> Hand holds or devices for similar purpose shall be provided to permit ingress and egress without hazard to passengers.</P> <P>(J) <E T="03">Emergency exit.</E> Vehicles with permanently affixed roofs shall be equipped with at least one emergency exit having a gate or door, latch and hand hold as prescribed in paragraphs (b)(3)(vi) (G) and (I) of this section and located on a side or rear not equipped with the exit prescribed in paragraph (b)(3)(vi)(F) of this section.</P> <P>(K) <E T="03">Communication with driver.</E> Means shall be provided to enable the passengers to communicate with the driver. Such means may include telephone, speaker tubes, buzzers, pull cords, or other mechanical or electrical means.</P> <P>(vii) <E T="03">Protection from cold.</E> Every motor vehicle shall be provided with a safe means of protecting passengers from cold or undue exposure, but in no event shall heaters of the following types be used:</P> <P>(A) <E T="03">Exhaust heaters.</E> Any type of exhaust heater in which the engine exhaust gases are conducted into or through any space occupied by persons or any heater which conducts engine compartment air into any such space.</P> <P>(B) <E T="03">Unenclosed flame heaters.</E> Any type of heater employing a flame which is not fully enclosed.</P> <P>(C) <E T="03">Heaters permitting fuel leakage.</E> Any type of heater from the burner of which there could be spillage or leakage of fuel upon the tilting or overturning of the vehicle in which it is mounted.</P> <P>(D) <E T="03">Heaters permitting air contamination.</E> Any heater taking air, heated or to be heated, from the engine compartment or from direct contact with any portion of the exhaust system; or any heater taking air in ducts from the outside atmosphere to be conveyed through the engine compartment, unless said ducts are so constructed and installed as to prevent contamination of the air so conveyed by exhaust or engine compartment gases.</P> <P>(E) Any heater not securely fastened to the vehicle.</P> <P>(4) <E T="03">Hours of service of drivers; maximum driving time (Source: 49 CFR 398.6).</E> No <PRTPAGE P="39"/>person shall drive nor shall any person permit or require a driver employed or used by it to drive or operate for more than 10 hours in the aggregate (excluding rest stops and stops for meals) in any period of 24 consecutive hours, unless such driver be afforded eight consecutive hours rest immediately following the 10 hours aggregate driving. The term “24 consecutive hours” as used in this part means any such period starting at the time the driver reports for duty.</P> <P>(5) <E T="03">Inspection and maintenance of motor vehicles (Source: 49 CFR 398.7).</E> Every person shall systematically inspect and maintain or cause to be systematically maintained, all motor vehicles and their accessories subject to its control, to insure that such motor vehicles and accessories are in safe and proper operating condition.</P> <CITA>[48 FR 36741, Aug. 12, 1983; 48 FR 38380, Aug. 23, 1983]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Insurance</HD> <SECTION> <SECTNO>§ 500.120</SECTNO> <SUBJECT>Insurance policy or liability bond is required for each vehicle used to transport any migrant or seasonal agricultural worker.</SUBJECT> <P>A farm labor contractor, agricultural employer or agricultural association shall not transport any migrant or seasonal agricultural worker or his property in any vehicle such contractor, employer or association owns, operates, controls, or causes to be operated unless he has an insurance policy or liability bond in effect which insures against liability for damage to persons or property arising from the ownership, operation, or causing to be operated of such vehicle. Generally, the owner or lessor of the vehicle will be responsible for providing the required insurance. The insurance requirements do not apply to vehicles involved in carpooling arrangements made by the workers themselves, using one of the workers' own vehicles and not specifically directed or requested by an agricultural employer or agricultural association. However, carpooling does not include any transportation arrangement in which a farm labor contractor participates. Activities exempt from transportation safety standards are also exempt from insurance requirements. (See also § 500.103.)</P> </SECTION> <SECTION> <SECTNO>§ 500.121</SECTNO> <SUBJECT>Coverage and level of insurance required.</SUBJECT> <P>(a) Except where a liability bond pursuant to § 500.124 of this part has been approved by the Secretary, a farm labor contractor, agricultural employer or agricultural association shall, in order to meet the insurance requirements in § 500.120, obtain a policy of vehicle liability insurance.</P> <P>(b) The amount of vehicle liability insurance shall not be less than $100,000 for each seat in the vehicle, but in no event is the total insurance required to be more than $5,000,000 for any one vehicle. The number of seats in the vehicle shall be determined by reference to § 500.105(b)(3)(vi). See § 500.122 regarding insurance requirements where State workers' compensation coverage is provided.</P> <P>(c) The insurance to be obtained under paragraph (a) of this section shall be issued by an insurance carrier licensed or otherwise authorized to do business in the State in which the insurance is obtained.</P> <P>(d) The vehicle liability insurance to be obtained under paragraph (a) of this section shall be endorsed to insure against liability for personal injury to employees whose transportation is not covered by workers' compensation insurance, and to persons who are not employees; and for property damage as specified in (b) of this section.</P> <P>(e) An agricultural employer or agricultural association may evidence the purchase of liability insurance which covers the workers while being transported, as required under paragraph (a) by obtaining and making available upon request to the Department of Labor a completed liability certificate of insurance showing that insurance conforming to the limits required by paragraph (b) and the coverage required by paragraph (d) of this section is in effect. A farm labor contractor must obtain such a certificate and provide a copy to the Administrator when applying for authorization to transport migrant or seasonal agricultural workers.</P> <P>(f) With respect to an agricultural employer or agricultural association, <PRTPAGE P="40"/>in the absence of the insurance certificate referred to under paragraph (e) of this section, the Department of Labor will look to the actual policy of insurance in determining compliance with the insurance requirements.</P> <CITA>[48 FR 36741, Aug. 12, 1983, as amended at 57 FR 3905, Jan. 31, 1992; 61 FR 24866, May 16, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.122</SECTNO> <SUBJECT>Adjustments in insurance requirements when workers' compensation coverage is provided under State law.</SUBJECT> <P>(a) If a farm labor contractor, agricultural employer or agricultural association referred to in § 500.120 is the employer of a migrant or seasonal agricultural worker for purposes of a State workers' compensation law and such employer provides workers' compensation coverage for such worker in the case of bodily injury or death as provided by such State law, the following adjustments in the insurance requirements relating to having an insurance policy or liability bond apply:</P> <P>(1) Except as provided in § 500.123, no vehicle liability insurance policy or liability bond shall be required of the employer, if such worker is transported only under circumstances for which there is coverage under such State law.</P> <P>(2) A liability insurance policy or liability bond shall be required of the employer for circumstances under which coverage for the transportation of such worker is not provided under such State law.</P> <P>(b) [Reserved]</P> <P>(c) A farm labor contractor, agricultural employer or agricultural association who is the employer of a migrant or seasonal agricultural worker may evidence the issuance of workers' compensation insurance and passenger insurance under paragraph (a) of this section by obtaining and making available upon request to the Department of Labor:</P> <P>(1) A workers' compensation coverage policy of insurance; and</P> <P>(2) A certificate of liability insurance covering transportation of all passengers who are not employees and of workers whose transportation by the employer is not covered by workers' compensation insurance. See § 500.121.</P> <P>(d) In the absence of the insurance certificate referred to under paragraph (c)(2) of this section, the Department of Labor will look to the actual policy of insurance or liability bond in determining compliance with the Act and these regulations.</P> <CITA>[48 FR 36741, Aug. 12, 1983, as amended at 56 FR 30327, July 2, 1991; 61 FR 24866, May 16, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.123</SECTNO> <SUBJECT>Property damage insurance required.</SUBJECT> <P>(a) When a person who is an employer of a migrant or seasonal agricultural worker provides workers' compensation insurance which protects such worker in the event of bodily injury or death while the worker is being transported, such person must also obtain insurance providing a minimum of $50,000 for loss or damage in any one accident to the property of others (excluding cargo), or evidence of a general liability insurance policy that provides the same protection.</P> <P>(b) Such person may evidence the purchase of motor carrier insurance or other appropriate insurance providing such property damage protection by obtaining and making available upon request to the Department of Labor a vehicle or other liability certificate of insurance showing that such person has obtained the property damage insurance required under paragraph (a) of this section.</P> <P>(c) In the absence of the insurance certificate referred to in paragraph (b) of this section, the Department of Labor will look to the actual policy of insurance in determining compliance with paragraph (a) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 500.124</SECTNO> <SUBJECT>Liability bond in lieu of insurance policy.</SUBJECT> <P>Financial responsibility in lieu of insurance may be evidenced by a liability bond executed as the “principal” by the person who will be transporting a migrant or seasonal agricultural worker, together with a third party identified in the instrument as the “surety”, to assure payment of any liability up to $500,000 for damages to persons or property arising out of such person's ownership of, operation of, or causing to be operated any vehicle for the <PRTPAGE P="41"/>transportation of such worker in connection with the person's business, activities, or operations. The “surety” shall be one which appears on the list contained in Treasury Department Circular 570, or which has been approved by the Secretary under the Employee Retirement Income Security Act of 1974 (Pub. L. 93-406). Treasury Department Circular 570 may be obtained from the U.S. Treasury Department, Audit Staff, Bureau of Government Financial Operations, Washington, DC 20226.</P> </SECTION> <SECTION> <SECTNO>§ 500.125</SECTNO> <SUBJECT>Qualifications and eligibility of insurance carrier or surety.</SUBJECT> <P>A policy of insurance or liability bond does not satisfy the financial responsibility of requirements of the Act and these regulations unless the insurer or surety furnishing the policy or bond to any farm labor contractor, agricultural employer or agricultural association is:</P> <P>(a) Legally authorized to issue such policies or bonds in the State in which the transportation occurs; or</P> <P>(b) Legally authorized to issue such policies or bonds in the State in which the farm labor contractor, agricultural employer or agricultural association has its principal place of business or permanent residence and is willing to designate a person upon whom process, issued by or under the authority of any court having jurisdiction of the subject matter, may be served in any proceeding at law or equity brought in any State in which the transportation occurs; or</P> <P>(c) Legally authorized to issue such policies or bonds in any State of the United States and eligible as an excess or surplus lines insurer in any State in which business is written and is willing to designate a person upon whom process, issued by or under the authority of any court having jurisdiction of the subject matter, may be served in any proceeding at law or equity brought in any State in which the transportation occurs.</P> </SECTION> <SECTION> <SECTNO>§ 500.126</SECTNO> <SUBJECT>Duration of insurance or liability bond.</SUBJECT> <P>Any insurance policy or liability bond which is obtained pursuant to the Act shall provide the required coverage for the full period during which the person shall be engaged in transporting any migrant or seasonal agricultural worker within the meaning of the Act.</P> </SECTION> <SECTION> <SECTNO>§ 500.127</SECTNO> <SUBJECT>Limitations on cancellation of insurance or liability bond of registered farm labor contractors.</SUBJECT> <P>Any insurance policy or liability bond obtained by a farm labor contractor who is required to register with the Department of Labor shall provide that it shall not be cancelled, rescinded, or suspended, nor become void for any reason whatsoever during such period in which the insurance or liability bond is required by the Act to be effective, except upon the expiration of the term for which it is written; or unless the parties desiring to cancel shall have first given thirty (30) days notice to the Administrator. The notice will include a statement setting forth the reason for cancellation, rescission, suspension, or any other termination of such policy or bond. The notice shall be in writing and forwarded via certified or registered mail, addressed to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210. Said thirty (30) days notice shall commence to run from the date notice is actually received by the Administrator.</P> </SECTION> <SECTION> <SECTNO>§ 500.128</SECTNO> <SUBJECT>Cancellation of insurance policy or liability bond not relief from insurance requirements.</SUBJECT> <P>Cancellation, rescission, suspension, or any other termination of any insurance policy or liability bond required by the Act does not relieve a person who transports or causes to be transported any migrant or seasonal agricultural worker in any vehicle under</P> <FP>his ownership or control of the responsibility to comply with the insurance requirements specified in §§ 500.121, 500.122 and 500.123.</FP> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Housing Safety and Health</HD> <SECTION> <SECTNO>§ 500.130</SECTNO> <SUBJECT>Application and scope of safety and health requirement.</SUBJECT> <P>(a) Each person who owns or controls a facility or real property which is used as housing for any migrant agricultural worker must ensure that the facility or real property complies with <PRTPAGE P="42"/>all substantive Federal and State safety and health standards applicable to such housing. If more than one person is involved in providing the housing for any migrant agricultural worker (for example, when an agricultural employer owns it and a farm labor contractor or any other person operates it), both persons are responsible for ensuring that the facility or real property meets the applicable Federal and State housing standards.</P> <P>(b) A farm labor contractor, agricultural employer, agricultural association or any other person is deemed an “owner” of a housing facility or real property if said person has a legal or equitable interest in such facility or real property.</P> <P>(c) A farm labor contractor, agricultural employer, agricultural association or any other person is in “control” of a housing facility or real property, regardless of the location of such facility, if said person is in charge of or has the power or authority to oversee, manage, superintend or administer the housing facility or real property either personally or through an authorized agent or employee, irrespective of whether compensation is paid for engaging in any of the aforesaid capacities.</P> <P>(d) The Occupational Safety and Health Administration (OSHA) is the agency of the U.S. Department of Labor which administers the Occupational Safety and Health Act (29 U.S.C. 651 <E T="03">et seq.</E>) which provides for the establishment of safety and health standards generally.</P> <P>(e) The Employment and Training Administration (ETA) is the agency of the U.S. Department of Labor which administers the U.S. Employment Service pursuant to the Wagner-Peyser Act (29 U.S.C. 49 <E T="03">et seq.</E>) including the interstate clearance order system.</P> </SECTION> <SECTION> <SECTNO>§ 500.131</SECTNO> <SUBJECT>Exclusion from housing safety and health requirement.</SUBJECT> <P>The housing safety and health requirements do not apply to any person who, in the ordinary course of that person's business, regularly provides housing on a commercial basis to the general public and who provides housing to any migrant agricultural worker of the same character and on the same or comparable terms and conditions as provided to the general public. Migrant labor housing shall not be brought within this exception simply by offering lodging to the general public.</P> </SECTION> <SECTION> <SECTNO>§ 500.132</SECTNO> <SUBJECT>Applicable Federal standards: ETA and OSHA housing standards.</SUBJECT> <P>(a) The Secretary has determined that the applicable Federal housing standards are the standards promulgated by the Employment and Training Administration, at 20 CFR 654.404 <E T="03">et seq.</E> and the standards promulgated by the Occupational Safety and Health Administration, at 29 CFR 1910.142. Except as provided in § 500.131, all migrant housing is subject to either the ETA standards or the OSHA standards, as follows:</P> <P>(1) A person who owns or controls a facility or real property to be used for housing any migrant agricultural worker, the construction of which was begun on or after April 3, 1980, and which was not under a contract for construction as of March 4, 1980, shall comply with the substantive Federal safety and health standards promulgated by OSHA at 29 CFR 1910.142. These OSHA standards are enforceable under MSPA, irrespective of whether housing is, at any particular point in time, subject to inspection under the Occupational Safety and Health Act.</P> <P>(2) A person who owns or controls a facility or real property to be used for housing any migrant agricultural worker which was completed or under construction prior to April 3, 1980, or which was under a contract for construction prior to March 4, 1980, may elect to comply with either the substantive Federal safety and health standards promulgated by OSHA at 29 CFR 1910.142 or the standards promulgated by ETA at 20 CFR 654.404 <E T="03">et seq.</E> The ETA standards were established to provide housing requirements for migrant housing used by an employer obtaining migrant workers through the U.S. Employment Service. The owner or operator of such housing may continue to rely on those standards, rather than OSHA standards, even if the housing is not currently being provided pursuant to a USES job placement program.</P> </SECTION> <SECTION> <PRTPAGE P="43"/> <SECTNO>§ 500.133</SECTNO> <SUBJECT>Substantive Federal and State safety and health standards defined.</SUBJECT> <P>Substantive safety and health standards include, but are not limited to, those that provide fire prevention, an adequate and sanitary supply of water,</P> <FP>plumbing maintenance, structurally sound construction of buildings, effective maintenance of those buildings, provision of adequate heat as weather conditions require, and reasonable protections for inhabitants from insects and rodents. Substantive housing standards do not include technical or procedural violations of safety and health standards.</FP> </SECTION> <SECTION> <SECTNO>§ 500.134</SECTNO> <SUBJECT>Compliance with State standards.</SUBJECT> <P>Compliance with the substantive Federal housing safety and health standards shall not excuse noncompliance with applicable substantive State housing safety and health standards.</P> </SECTION> <SECTION> <SECTNO>§ 500.135</SECTNO> <SUBJECT>Certificate of housing inspection.</SUBJECT> <P>(a) Except as provided in paragraph (c) of this section, a facility or real property to be used for housing a migrant agricultural worker shall not be occupied by any migrant agricultural worker unless either a State or local health authority or other appropriate agency, including a Federal agency, has certified that the facility or real property meets applicable safety and health standards.</P> <P>(b) Except as provided in paragraph (c) of this section, the person who owns or controls a facility or real property shall not permit it to be occupied by any migrant agricultural worker unless a copy of a certificate of occupancy from the State, local or Federal agency which conducted the housing safety and health inspection is posted at the site of the facility or real property. The original of such certificate of occupancy shall be retained by such person for three years and made available for inspection in accordance with section 512 of the Act.</P> <P>(c) If a request for an inspection of a facility or real property is made to the appropriate State, local or Federal agency at least forty-five (45) days prior to the date on which it is to be occupied by a migrant agricultural worker but the agency has not conducted an inspection by such date, the facility or property may be occupied by migrant agricultural workers unless prohibited by State law.</P> <P>(d) Receipt and posting of a certificate of occupancy as provided under paragraph (b) of this section, or the failure of an agency to inspect a facility or property within the forty-five (45) day time period, shall not relieve the person who owns or controls a facility or property from the responsibility of ensuring that such facility or property meets the applicable State and Federal safety and health standards. Once such facility or property is occupied, such person shall supervise and continually maintain such facility or property so as to ensure that it remains in compliance with the applicable safety and health standards.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Enforcement</HD> <SECTION> <SECTNO>§ 500.140</SECTNO> <SUBJECT>General.</SUBJECT> <P>Whenever the Secretary believes that the Act or these regulations have been violated he shall take such action and institute such proceedings as he deems appropriate, including (but not limited to) the following:</P> <P>(a) Recommend to the Attorney General the institution of criminal proceedings against any person who willfully and knowingly violates the Act or these regulations;</P> <P>(b) Recommend to the Attorney General the institution of criminal proceedings against any farm labor contractor who recruits, hires, employs, or uses, with knowledge, the services of any illegal alien, as defined in § 500.20(n) of these regulations, if such farm labor contractor has:</P> <P>(1) Been refused issuance or renewal of, or has failed to obtain, a Certificate of Registration, or</P> <P>(2) Is a farm labor contractor whose certificate has been suspended or revoked;</P> <P>(c) Petition any appropriate District Court of the United States for temporary or permanent injunctive relief to prohibit violation of the Act or these regulations by any person;<PRTPAGE P="44"/> </P> <P>(d) Assess a civil money penalty against any person for any violation of the Act or these regulations;</P> <P>(e) Refer any unpaid civil money penalty which has become a final and unappealable order of the Secretary or a final judgment of a court in favor of the Secretary to the Attorney General for recovery;</P> <P>(f) Revoke or suspend or refuse to issue or renew any Certificate of Registration authorized by the Act or these regulations;</P> <P>(g) Deny the facilities and services afforded by the Wagner-Peyser Act to any farm labor contractor who refuses or fails to produce, when asked, a valid Certificate of Registration;</P> <P>(h) Institute action in any appropriate United States District Court against any person who, contrary to the provisions of section 505(a) of the Act, discriminates against any migrant or seasonal agricultural worker.</P> </SECTION> <SECTION> <SECTNO>§ 500.141</SECTNO> <SUBJECT>Concurrent actions.</SUBJECT> <P>The taking of any one of the actions referred to in § 500.140 shall not be a bar to the concurrent taking of any other action authorized by the Act and these regulations.</P> </SECTION> <SECTION> <SECTNO>§ 500.142</SECTNO> <SUBJECT>Representation of the Secretary.</SUBJECT> <P>(a) Except as provided in section 518(a) of title 28, U.S. Code, relating to litigation before the Supreme Court, the Solicitor of Labor may appear for and represent the Secretary in any civil litigation brought under the Act; but all such litigation shall be subject to the direction and control of the Attorney General.</P> <P>(b) The Solicitor of Labor, through the authorized representatives identified in § 500.231, shall represent the Secretary in all administrative hearings under the Act and these regulations.</P> </SECTION> <SECTION> <SECTNO>§ 500.143</SECTNO> <SUBJECT>Civil money penalty assessment.</SUBJECT> <P>(a) A civil money penalty may be assessed for each violation of the Act or these regulations.</P> <P>(b) In determining the amount of penalty to be assessed for any violation of the Act or these regulations the Secretary shall consider the type of violation committed and other relevant factors, including but not limited to the following:</P> <P>(1) Previous history of violation or violations of this Act and the Farm Labor Contractor Registration Act;</P> <P>(2) The number of workers affected by the violation or violations;</P> <P>(3) The gravity of the violation or violations;</P> <P>(4) Efforts made in good faith to comply with the Act (such as when a joint employer agricultural employer/association provides employment-related benefits which comply with applicable law to agricultural workers, or takes reasonable measures to ensure farm labor contractor compliance with legal obligations);</P> <P>(5) Explanation of person charged with the violation or violations;</P> <P>(6) Commitment to future compliance, taking into account the public health, interest or safety, and whether the person has previously violated the Act;</P> <P>(7) The extent to which the violator achieved a financial gain due to the violation, or the potential financial loss or potential injury to the workers.</P> <CITA>[48 FR 36741, Aug. 12, 1983, as amended at 62 FR 11748, Mar. 12, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.144</SECTNO> <SUBJECT>Civil money penalties—payment and collection.</SUBJECT> <P>Where the assessment is directed in a final order by the Secretary or in a final judgment issued by a United States District Court, the amount of the penalty is immediately due and payable to the United States Department of Labor. The person assessed such penalty shall remit promptly the amount thereof, as finally determined, to the Secretary by certified check or by money order, made payable to the order of “Wage and Hour Division, Labor.” The remittance shall be delivered or mailed either to the Administrator, in Washington, DC, or to the Wage and Hour Division Regional Office for the area in which the violations occurred.</P> </SECTION> <SECTION> <SECTNO>§ 500.145</SECTNO> <SUBJECT>Registration determinations.</SUBJECT> <P>Section 500.51 set forth the standards under which the Secretary may refuse to issue or to renew, or may suspend or revoke, a Certificate of Registration <PRTPAGE P="45"/>(including a Farm Labor Contractor Employee Certificate of Registration).</P> </SECTION> <SECTION> <SECTNO>§ 500.146</SECTNO> <SUBJECT>Continuation of matters involving violations of FLCRA.</SUBJECT> <P>(a) Any matter involving the revocation, suspension, or refusal to renew a Certification of Registration issued under FLCRA and any matter involving the refusal to issue a certificate authorized under FLCRA shall continue through final administrative determination in accordance with the provisions of FLCRA and the regulations issued thereunder.</P> <P>(b) Any matter involving the assessment of a civil money penalty for a violation of FLCRA will continue through final administrative determination in accordance with the provisions of FLCRA and the regulations issued thereunder.</P> <P>(c) The rules of practice for implementation of administrative enforcement for violations of FLCRA referred to the Office of the Chief Administrative Law Judge on or after April 14, 1983, shall be the rules of practice provided in §§ 500.220 through 500.262 and the official record shall be maintained in accordance with §§ 500.270 and 500.271 of these regulations.</P> <P>(d) The rules of practice for implementation of administrative enforcement for violations of FLCRA referred to the Office of the Chief Administrative Law Judge prior to April 14, 1983 shall be the rules of practice provided in 29 CFR 40.201 through 40.262.</P> </SECTION> <SECTION> <SECTNO>§ 500.147</SECTNO> <SUBJECT>Continuation of matters involving violations of section 106 of MSPA.</SUBJECT> <P>Any matter involving the revocation, suspension, refusal to issue or to renew a certificate of registration or any matter involving the assessment of a civil money penalty, for a violation of section 106 of MSPA, which occurred prior to June 1, 1987, shall continue through final administrative determination in accordance with the provisions of MSPA and these regulations.</P> <CITA>[54 FR 13329, Mar. 31, 1989]</CITA> </SECTION> <SUBJGRP> <HD SOURCE="HED">Agreements With Federal and State Agencies</HD> <SECTION> <SECTNO>§ 500.155</SECTNO> <SUBJECT>Authority.</SUBJECT> <P>Section 513 of the Act authorizes the Secretary to enter into agreements with Federal and State agencies (a) to use their facilities and services, (b) to delegate (subject to subsection 513(b) of the Act) to Federal and State agencies such authority (other than rulemaking) as he determines may be useful in carrying out the purposes of the Act, and (c) to allocate or transfer funds to, or otherwise pay or reimburse, such agencies for expenses incurred pursuant to paragraphs (a) or (b) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 500.156</SECTNO> <SUBJECT>Scope of agreements with Federal agencies.</SUBJECT> <P>Every agreement between the Secretary and any other Federal agency under the authority referred to in § 500.155 of this part shall contain terms and conditions mutually agreeable to both parties, and shall contain such delegation of authority as the Secretary deems useful.</P> </SECTION> <SECTION> <SECTNO>§ 500.157</SECTNO> <SUBJECT>Scope of agreements with State agencies.</SUBJECT> <P>(a) Every agreement between the Secretary and any State agency under the authority referred to in § 500.155 of this part shall be in writing.</P> <P>(b) Any delegation to a State agency by the Secretary under such authority shall be made pursuant to approval of a written State plan submitted in accordance with § 500.159 which shall: (1) Include a description of each function to be performed, the method of performing each such function, and the resources to be devoted to the performance of each such function, (2) provide assurances satisfactory to the Secretary that the State agency will comply with its description under paragraph (b)(1) of this section and that the State agency's performance of the delegated functions will be at least comparable to the performance of such functions by the Department of Labor; and (3) contain a certification of the Attorney General of such State, or, if the Attorney General is not authorized to make such a statement, the State official who is so authorized, that an <PRTPAGE P="46"/>agreement pursuant to such State plan is valid under the laws of that State.</P> </SECTION> <SECTION> <SECTNO>§ 500.158</SECTNO> <SUBJECT>Functions delegatable.</SUBJECT> <P>The Secretary may delegate to the State such functions as he deems useful including the</P> <P>(a) Receipt, handling and processing of applications for certificates of registration;</P> <P>(b) Issuance of certificates of registration;</P> <P>(c) Conduct of various investigations; and</P> <P>(d) Enforcement of the Act.</P> </SECTION> <SECTION> <SECTNO>§ 500.159</SECTNO> <SUBJECT>Submission of plan.</SUBJECT> <P>(a) Any State agency desiring to enter into an agreement pursuant to section 513 of the Act shall submit a State plan in such form and in such detail as the Secretary shall direct.</P> <P>(b) Each such plan shall include, at least, the following:</P> <P>(1) The delegation sought;</P> <P>(2) The State authority for performing such delegated functions;</P> <P>(3) A description of the manner in which the State intends to carry out such functions; and</P> <P>(4) The estimated cost of carrying out such functions.</P> </SECTION> <SECTION> <SECTNO>§ 500.160</SECTNO> <SUBJECT>Approved State plans.</SUBJECT> <P>(a) The Secretary, in accordance with the authority referred to in § 500.155 of this part, has delegated the following functions to the States listed herein below:</P> <GPOTABLE CDEF="xs48,r50" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1">State</CHED> <CHED H="1">Function</CHED> </BOXHD> <ROW> <ENT I="01">Florida</ENT> <ENT>Receive, handle, process applications and issue certificates of registration.</ENT> </ROW> <ROW> <ENT I="01">New Jersey</ENT> <ENT>Receive, handle, process applications and issue certificates of registration.</ENT> </ROW> <ROW> <ENT I="01">Virginia</ENT> <ENT>Receive, handle, process applications and issue certificates of registration.</ENT> </ROW> </GPOTABLE> <P>(b) Every State agreement entered into pursuant to the authority referred to in § 500.155 of this part shall be available for public inspection and copying in accordance with 29 CFR part 70.</P> <P>(c) Every enumerated delegated function shall be valid in all states.</P> <CITA>[48 FR 36741, Aug. 12, 1983, as amended at 49 FR 5112, Feb. 10, 1984; 50 FR 42163, Oct. 18, 1985]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.161</SECTNO> <SUBJECT>Audits.</SUBJECT> <P>The Secretary shall conduct audits as he deems necessary of the State plans, but on not less than an annual basis.</P> </SECTION> <SECTION> <SECTNO>§ 500.162</SECTNO> <SUBJECT>Reports.</SUBJECT> <P>The Secretary shall require such reports as he deems necessary of activities conducted pursuant to State plans, but on not less than an annual basis.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Central Public Registry</HD> <SECTION> <SECTNO>§ 500.170</SECTNO> <SUBJECT>Establishment of registry.</SUBJECT> <P>The Administrator shall establish a central public registry of all persons issued a Certificate of Registration or a Farm Labor Contractor Employee Certificate. The central public registry shall be available at the Regional Offices of the Wage and Hour Division and its National Office in Washington, DC. Information filed therein shall be made available upon request. Requests for information contained in the registry may also be directed by mail to the Administrator, Wage and Hour Division. Attn: MSPA, U.S. Department of Labor, Washington, DC 20210. Alternatively, requests for registry information may be made by telephone by calling 1-866-4US-WAGE (1-866-487-9243), a toll-free number, during the hours of 8 a.m. to 5 p.m., in your time zone, Monday through Friday.</P> <CITA>[67 FR 76986, Dec. 16, 2002]</CITA> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Administrative Proceedings</HD> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTION> <SECTNO>§ 500.200</SECTNO> <SUBJECT>Establishment of procedures and rules of practice.</SUBJECT> <P>This subpart codifies and establishes the procedures and rules of practice necessary for the administrative enforcement of the Act.</P> </SECTION> <SECTION> <SECTNO>§ 500.201</SECTNO> <SUBJECT>Applicability of procedures and rules.</SUBJECT> <P>(a) The procedures and rules contained herein prescribe the administrative process necessary for a determination:<PRTPAGE P="47"/> </P> <P>(1) To suspend or revoke, or to refuse to issue or renew, a Certificate of Registration authorized under the Act and these regulations; and</P> <P>(2) To impose an assessment of civil money penalties for violations of the Act or of these regulations.</P> <P>(b) The procedures and rules contained herein also specify the administrative responsibility under section 102(5) of the Act with regard to a designation by a court of the Secretary as an agent of an applicant for a certificate of registration in any action against such applicant, if said applicant has left the jurisdiction in which the action is commenced or otherwise has become unavailable to accept service.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures Relating to Hearing</HD> <SECTION> <SECTNO>§ 500.210</SECTNO> <SUBJECT>Written notice of determination required.</SUBJECT> <P>(a) Whenever the Secretary determines to suspend or revoke, or to refuse to issue or renew, a Certificate of Registration, the applicant for or the holder of such certificate shall be notified in writing of such determination.</P> <P>(1) In cases involving a determination relating to a Certificate of Registration applied for by, or issued to, a farm labor contractor, written notice shall also be given to every applicant for or holder of a Certificate of Registration as an employee of such contractor.</P> <P>(2) In cases involving a determination relating to a Farm Labor Contractor Employee Certificate of Registration, written notice shall also be given to the farm labor contractor of such applicant or certificate holder.</P> <P>(b) Whenever the Secretary determines to assess a civil money penalty for a violation of the Act or these regulations, the person against whom such penalty is assessed shall be notified in writing of such determination.</P> </SECTION> <SECTION> <SECTNO>§ 500.211</SECTNO> <SUBJECT>Contents of notice.</SUBJECT> <P>The notice required by § 500.210 shall:</P> <P>(a) Set forth the determination of the Secretary and the reason or reasons therefor.</P> <P>(b) Set forth, in the case of a civil money penalty assessment:</P> <P>(1) A description of each violation; and</P> <P>(2) The amount assessed for each violation.</P> <P>(c) Set forth the right to request a hearing on such determination.</P> <P>(d) Inform any affected person or persons that in the absence of a timely request for a hearing, the determination of the Secretary shall become final and unappealable.</P> <P>(e) Set forth the time and method for requesting a hearing, and the procedures relating thereto, as set forth in § 500.212.</P> </SECTION> <SECTION> <SECTNO>§ 500.212</SECTNO> <SUBJECT>Request for hearing.</SUBJECT> <P>(a) Any person desiring to request an administrative hearing on a determination referred to in § 500.210 shall make such request in writing to the official who issued the determination, at the Wage and Hour Division address appearing on the determination notice. Such request must be made no later than thirty (30) days after the date of issuance of the notice referred to in § 500.210.</P> <P>(b) The request for such hearing shall be delivered in person or by mail to the Wage and Hour Division office at the address appearing on the determination notice upon which the request for a hearing is based, within the time set forth in paragraph (a) of this section. For the affected person's protection, if the request is by mail, it should be by certified mail.</P> <P>(c) No particular form is prescribed for any request for hearing permitted by this part. However, any such request shall:</P> <P>(1) Be typewritten or legibly written on size 8<FR>1/2</FR>″×11″ paper;</P> <P>(2) Specify the issue or issues stated in the notice of determination giving rise to such request;</P> <P>(3) State the specific reason or reasons why the person requesting the hearing believes such determination is in error;</P> <P>(4) Be signed by the person making the request or by an authorized representative of such person; and</P> <P>(5) Include the address at which such person or authorized representative desires to receive further communications relating thereto.<PRTPAGE P="48"/> </P> <P>(d) Civil money penalties under FLCRA shall be treated as follows:</P> <P>(1) Determinations to assess civil money penalties for violations of FLCRA made prior to April 14, 1983 shall continue until a final administrative determination shall have been made in accordance with 29 CFR part 40.</P> <P>(2) Determinations to assess civil money penalties for violations of FLCRA arising prior to April 14, 1983, made on or after April 14, 1983, shall continue until a final administrative determination shall have been made in accordance with these regulations.</P> <CITA>[48 FR 36741, Aug. 12, 1983, as amended at 54 FR 13329, Mar. 31, 1989; 57 FR 5942, Feb. 18, 1992; 71 FR 16665, Apr. 3, 2006]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures Relating to Substituted Service</HD> <SECTION> <SECTNO>§ 500.215</SECTNO> <SUBJECT>Change of address.</SUBJECT> <P>(a) Pursuant to section 105(1) of the Act, every holder of a Certificate of Registration shall notify the Secretary within thirty (30) days of each change of permanent place of residence. Said persons may also furnish additional mailing addresses.</P> <P>(b) The notification required in paragraph (a) of this section shall be in writing, by certified mail and addressed to the Administrator, Wage and Hour Division, Employment Standards Administration, 200 Constitution Avenue, NW., Washington, DC 20210.</P> <P>(c) Such change of address shall be deemed effective upon receipt by the Administrator, unless a later date is specified in the notice.</P> </SECTION> <SECTION> <SECTNO>§ 500.216</SECTNO> <SUBJECT>Substituted service.</SUBJECT> <P>(a) Pursuant to section 102(5) of the Act, the Secretary, when so designated by a court, shall accept service of summons in any action arising under the Act or these regulations against any applicant for or any holder of a Certificate of Registration who has left the jurisdiction in which such action is commenced or otherwise has become unavailable to accept such service.</P> <P>(b) Acceptance of service of summons referred to in paragraph (a) of this section shall be under such terms and conditions as are set by the court in its designation of the Secretary for the purpose of section 102(5) of the Act.</P> <P>(c) To be effective, such service shall be made by delivery personally or by certified mail, either to the Administrator of the Wage and Hour Division in Washington, DC, or to the Administrator's authorized representative located in the area in which the action has been commenced.</P> </SECTION> <SECTION> <SECTNO>§ 500.217</SECTNO> <SUBJECT>Responsibility of Secretary for service.</SUBJECT> <P>Upon receipt of any substituted service, as described in § 500.216, the same shall be forwarded by certified mail to the permanent address furnished by the person for whom service is accepted and to such other address as may be determined appropriate by the Secretary. Such mailing shall complete the Secretary's responsibility in connection with the substituted service requirement of the Act.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Rules of Practice</HD> <SECTION> <SECTNO>§ 500.219</SECTNO> <SUBJECT>General.</SUBJECT> <P>Except as specifically provided in these regulations, the “Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges” established by the Secretary at 29 CFR part 18 shall apply to administrative proceedings under MSPA.</P> <CITA>[48 FR 36741, Aug. 21, 1983. Redesignated at 54 FR 13329, Mar. 31, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.220</SECTNO> <SUBJECT>Service of determinations and computation of time.</SUBJECT> <P>(a) Service of determinations to suspend, revoke, refuse to issue, or refuse to renew a certificate of registration or to assess a civil money penalty shall be made by personal service to the individual, officer of a corporation, or attorney of record or by mailing the determination to the last known address of the individual, officer, or attorney. If done by certified mail, service is complete upon mailing. If done by regular mail or in person, service is complete upon receipt by the addressee or the addressee's representative;</P> <P>(b) Time will be computed beginning with the day following the action and <PRTPAGE P="49"/>includes the last day of the period unless it is a Saturday, Sunday, or Federally observed holiday, in which case the time period includes the next business day; and</P> <P>(c) When a request for hearing is filed by mail, five (5) days shall be added to the prescribed period during which the party has the right to request a hearing on the determination.</P> <CITA>[54 FR 13329, Mar. 31, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.221</SECTNO> <SUBJECT>Commencement of proceeding.</SUBJECT> <P>Each administrative proceeding permitted under the Act and these regulations shall be commenced upon receipt of a timely request for hearing filed in accordance with § 500.212.</P> </SECTION> <SECTION> <SECTNO>§ 500.222</SECTNO> <SUBJECT>Designation of record.</SUBJECT> <P>Except as provided in paragraph (c) of this section:</P> <P>(a) Each administrative proceeding instituted under the Act and these regulations shall be identified of record by a number preceded by the year and the letters “MSPA” and followed by one or more of the following designations:</P> <P>(1) Proceedings involving the “refusal to issue or to renew, or to suspend or to revoke Certificate of Registration” shall be designated as “R”.</P> <P>(2) Proceedings involving the “assessment of civil money penalties” shall be designated as “P”.</P> <P>(3) Proceedings involving both Certificate of Registration and assessment of civil money penalties shall be designated as “R and P”.</P> <P>(b) The number, letter(s), and designation assigned to each such proceeding shall be clearly displayed on each pleading, motion, brief, or other formal document filed and docketed of record.</P> <P>(c) Each administrative proceeding involving violations of FLCRA prior to April 14, 1983 and filed with the Office of the Chief Administrative Law Judge on or after April 14, 1983, shall be identified of record by a number preceded by the year and the letters “FLCRA-MSPA” and followed by one or more of the letter designations provided in paragraphs (a)(1) through (a)(3) of this section, i.e., (<E T="03">year</E>) -FLCRA-MSPA-(#)-(R and/or P).</P> </SECTION> <SECTION> <SECTNO>§ 500.223</SECTNO> <SUBJECT>Caption of proceeding.</SUBJECT> <P>(a) Each administrative proceeding instituted under the Act and these regulations shall be captioned in the name of the person requesting such hearing, and shall be styled as follows: </P> <EXTRACT> <FP SOURCE="FP-1">In The Matter of __, Respondent.</FP> </EXTRACT> <P>(b) For the purposes of such administrative proceeding the “Secretary of Labor” shall be identified as plaintiff and the person requesting such hearing shall be named as respondent.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Referral for Hearing</HD> <SECTION> <SECTNO>§ 500.224</SECTNO> <SUBJECT>Referral to Administrative Law Judge.</SUBJECT> <P>(a) Upon receipt of a timely request for a hearing filed pursuant to and in accordance with § 500.212, the Secretary, by the Associate Solicitor for the Division of Fair Labor Standards or by the Regional Solicitor for the Region in which the action arose, shall, by Order of Reference, promptly refer an authenticated copy of the notice of administrative determination complained of, and the original or a duplicate copy of the request for hearing signed by the person requesting such hearing or by the authorized representative of such person, to the Chief Administrative Law Judge, for a determination in an administrative proceeding as provided herein. The notice of administrative determination and request for hearing shall be filed of record in the Office of the Chief Administrative Law Judge and shall, respectively, be given the effect of a complaint and answer thereto for purposes of the administrative proceeding, subject to any amendment that may be permitted under these regulations.</P> <P>(b) In cases involving a denial, suspension, or revocation of a Certificate of Registration (Farm Labor Contractor Certificate; Farm Labor Contractor Employee Certificate) or “certificate action,” including those cases where the farm labor contractor has requested a hearing on civil money penalty(ies) as well as on the certificate action, the date of the hearing shall be not more than sixty (60) days from the date on which the Order of Reference is filed. No request for postponement <PRTPAGE P="50"/>shall be granted except for compelling reasons.</P> <P>(c) A copy of the Order of Reference, together with a copy of these regulations, shall be served by counsel for the Secretary upon the person requesting the hearing, in the manner provided in 29 CFR 18.3.</P> <CITA>[48 FR 36741, Aug. 12, 1983, as amended at 61 FR 24866, May 16, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.225</SECTNO> <SUBJECT>Notice of docketing.</SUBJECT> <P>The Chief Administrative Law Judge shall promptly notify the parties of the docketing of each matter.</P> </SECTION> <SECTION> <SECTNO>§ 500.226</SECTNO> <SUBJECT>Service upon attorneys for the Department of Labor—number of copies.</SUBJECT> <P>Two copies of all pleadings and other documents required for any administrative proceeding provided herein shall be served on the attorneys for the Department of Labor. One copy shall be served on the Associate Solicitor, Division of Fair Labor Standards, Office of the Solicitor, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, and one copy on the Attorney representing the Department in the proceeding.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures Before Administrative Law Judge</HD> <SECTION> <SECTNO>§ 500.231</SECTNO> <SUBJECT>Appearances; representation of the Department of Labor.</SUBJECT> <P>The Associate Solicitor, Division of Fair Labor Standards, and such other counsel, as designated, shall represent the Secretary in any proceeding under these regulations.</P> </SECTION> <SECTION> <SECTNO>§ 500.232</SECTNO> <SUBJECT>Consent findings and order.</SUBJECT> <P>(a) <E T="03">General.</E> At any time after the commencement of a proceeding under this part, but prior to the reception of evidence in any such proceeding, a party may move to defer the receipt of any evidence for a reasonable time to permit negotiation of an agreement containing consent findings and an order disposing of the whole or any part of the proceeding. The allowance of such deferment and the duration thereof shall be at the discretion of the Administrative Law Judge, after consideration of the nature of the proceeding, the requirements of the public interest, the representations of the parties, and the probability of an agreement being reached which will result in a just disposition of the issues involved.</P> <P>(b) <E T="03">Content.</E> Any agreement containing consent findings and an order disposing of a proceeding or any part thereof shall also provide:</P> <P>(1) That the order shall have the same force and effect as an order made after full hearing;</P> <P>(2) That the entire record on which any order may be based shall consist solely of the notice of administrative determination (or amended notice, if one is filed), and the agreement;</P> <P>(3) A waiver of any further procedural steps before the Administrative Law Judge; and</P> <P>(4) A waiver of any right to challenge or contest the validity of the findings and order entered into in accordance with the agreement.</P> <P>(c) <E T="03">Submission.</E> On or before the expiration of the time granted for negotiations, the parties or their authorized representatives or their counsel may:</P> <P>(1) Submit the proposed agreement for consideration by the Administrative Law Judge; or</P> <P>(2) Inform the Administrative Law Judge that agreement cannot be reached.</P> <P>(d) <E T="03">Disposition.</E> In the event an agreement containing consent findings and an order is submitted within the time allowed therefor, the Administrative Law Judge, within thirty (30) days thereafter, shall, if satisfied with its form and substance, accept such agreement by issuing a decision based upon the agreed findings.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Post-Hearing Procedures</HD> <SECTION> <SECTNO>§ 500.262</SECTNO> <SUBJECT>Decision and order of Administrative Law Judge.</SUBJECT> <P>(a) The Administrative Law Judge shall prepare, as promptly as practicable after the expiration of the time set for filing proposed findings and related papers a decision on the issues referred by the Secretary.</P> <P>(b) In cases involving certificate actions as described in § 500.224(b), the Administrative Law Judge shall issue a decision within ninety (90) calendar days after the close of the hearing.<PRTPAGE P="51"/> </P> <P>(c) The decision of the Administrative Law Judge shall be limited to a determination whether the respondent has violated the Act or these regulations, and the appropriateness of the remedy or remedies imposed by the Secretary. The Administrative Law Judge shall not render determinations on the legality of a regulatory provision or the constitutionality of a statutory provision.</P> <P>(d) The decision of the Administrative Law Judge, for purposes of the Equal Access to Justice Act (5 U.S.C. 504), shall be limited to determinations of attorney fees and/or other litigation expenses in adversary proceedings requested pursuant to § 500.212 which involve the modification, suspension or revocation of a Certificate of Registration issued under the Act and these Regulations, and/or the imposition of a civil money penalty assessed for a violation of the Act or these Regulations. The Administrative Law Judge shall have no power or authority to award attorney fees and/or other litigation expenses pursuant to the provisions of the Equal Access to Justice Act or Regulations issued thereunder in any proceeding under MSPA or these Regulations involving the refusal to issue or renew a Certificate of Registration.</P> <P>(e) The decision of the Administrative Law Judge shall include a statement of findings and conclusions, with reasons and basis therefor, upon each material issue presented on the record. The decision shall also include an appropriate order which may be to affirm, deny, reverse, or modify, in whole or in part, the determination of the Secretary. The reason or reasons for such order shall be stated in the decision.</P> <P>(f) The Administrative Law Judge shall transmit to the Chief Administrative Law Judge the entire record including the decision. The Chief Administrative Law Judge shall serve copies of the decision on each of the parties.</P> <P>(g) The decision when served shall constitute the final order of the Secretary unless the Secretary, pursuant to section 103(b)(2) or section 503(b)(2) of the Act, modifies or vacates the decision and order of the Administrative Law Judge.</P> <P>(h) Except as provided in §§ 500.263 through 500.268, the administrative remedies available to the parties under the Act will be exhausted upon service of the decision of the Administrative Law Judge.</P> <CITA>[48 FR 36741, Aug. 12, 1983, as amended at 61 FR 24866, May 16, 1996]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Modification or Vacation of Order of Administrative Law Judge</HD> <SECTION> <SECTNO>§ 500.263</SECTNO> <SUBJECT>Authority of the Secretary.</SUBJECT> <P>The Secretary may modify or vacate the Decision and Order of the Administrative Law Judge whenever he concludes that the Decision and Order:</P> <P>(a) Is inconsistent with a policy or precedent established by the Department of Labor,</P> <P>(b) Encompasses determinations not within the scope of the authority of the Administrative Law Judge,</P> <P>(c) Awards attorney fees and/or other litigation expenses pursuant to the Equal Access to Justice Act which are unjustified or excessive, or</P> <P>(d) Otherwise warrants modifying or vacating.</P> <CITA>[54 FR 13330, Mar. 31, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.264</SECTNO> <SUBJECT>Procedures for initiating review.</SUBJECT> <P>(a) Within twenty (20) days after the date of the decision of the Administrative Law Judge, the respondent, the Administrator, or any other party desiring review thereof, may file with the Secretary an original and two copies of a petition for issuance of a Notice of Intent as described under § 500.265. The petition shall be in writing and shall contain a concise and plain statement specifying the grounds on which review is sought. A copy of the Decision and Order of the Administrative Law Judge shall be attached to the petition.</P> <P>(b) Copies of the petition shall be served upon all parties to the proceeding and on the Chief Administrative Law Judge.</P> <CITA>[54 FR 13330, Mar. 31, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.265</SECTNO> <SUBJECT>Implementation by the Secretary.</SUBJECT> <P>(a) Whenever, on the Secretary's own motion or upon acceptance of a party's petition, the Secretary believes that a <PRTPAGE P="52"/>Decision and Order may warrant modifying or vacating, the Secretary shall issue a Notice of Intent to modify or vacate.</P> <P>(b) The Notice of Intent to Modify or Vacate a Decision and Order shall specify the issue or issues to be considered, the form in which submission shall be made (i.e., briefs, oral argument, etc.), and the time within which such presentation shall be submitted. The Secretary shall closely limit the time within which the briefs must be filed or oral presentations made, so as to avoid unreasonable delay.</P> <P>(c) The Notice of Intent shall be issued within thirty (30) days after the date of the Decision and Order in question.</P> <P>(d) Service of the Notice of Intent shall be made upon each party to the proceeding, and upon the Chief Administrative Law Judge, in person or by certified mail.</P> <CITA>[54 FR 13330, Mar. 31, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.266</SECTNO> <SUBJECT>Responsibility of the Office of Administrative Law Judges.</SUBJECT> <P>Upon receipt of the Secretary's Notice of Intent to Modify or Vacate a Decision and Order of an Administrative Law Judge, the Chief Administrative Law Judge shall, within fifteen (15) days, index, certify and forward a copy of the complete hearing record to the Secretary.</P> <CITA>[48 FR 36741, Aug. 21, 1983. Redesignated at 54 FR 13330, Mar. 31, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.267</SECTNO> <SUBJECT>Filing and service.</SUBJECT> <P>(a) <E T="03">Filing.</E> All documents submitted to the Secretary shall be filed with the Secretary of Labor, U.S. Department of Labor, Washington, DC 20210.</P> <P>(b) <E T="03">Number of copies.</E> An original and two copies of all documents shall be filed.</P> <P>(c) <E T="03">Computation of time for delivery by mail.</E> Documents are not deemed filed with the Secretary until actually received by that office. All documents, including documents filed by mail, must be received by the Secretary either on or before the due date.</P> <P>(d) <E T="03">Manner and proof of service.</E> A copy of all documents filed with the Secretary shall be served upon all other parties involved in the proceeding. Service under this section shall be by personal delivery or by mail. Service by mail is deemed effected at the time of mailing to the last known address.</P> <CITA>[54 FR 13330, Mar. 31, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.268</SECTNO> <SUBJECT>Final decision of the Secretary.</SUBJECT> <P>(a) The Secretary's final Decision and Order shall be issued within 120 days from the notice of intent granting the petition, except that in cases involving the review of an Administrative Law Judge decision in a certificate action as described in § 500.224(b), the Secretary's final decision shall be issued within ninety (90) days from the date such notice. The Secretary's Decision and Order shall be served upon all parties and the Chief Administrative Law Judge, in person or by certified mail.</P> <P>(b) Upon receipt of an Order of the Secretary modifying or vacating the Decision and Order of an Administrative Law Judge, the Chief Administrative Law Judge shall substitute such Order for the Decision and Order of the Administrative Law Judge.</P> <CITA>[54 FR 13330, Mar. 31, 1989, as amended at 61 FR 24866, May 16, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 500.269</SECTNO> <SUBJECT>Stay pending decision of the Secretary.</SUBJECT> <P>(a) The filing of a petition seeking review by the Secretary of a Decision and Order of an Administrative Law Judge, pursuant to § 500.264, does not stop the running of the thirty-day time limit in which respondent may file an appeal to obtain a review in the United States District Court of an administrative order, as provided in section 103(b)(2) or section 503(b)(2) of the Act, unless the Secretary issues a Notice of Intent pursuant to § 500.265.</P> <P>(b) In the event a respondent has filed a notice of appeal of the Administrative Law Judge's Decision and Order in a United States District Court and the Secretary issues a Notice of Intent, the Secretary will seek a stay of proceedings in the Court until such time as the Secretary issues the final decision, as provided in § 500.268.</P> <P>(c) Where the Secretary has issued a Notice of Intent, the time for filing an appeal under sections 103(b)(2) or 503(b)(2) of the Act shall commence <PRTPAGE P="53"/>from the date of the issuance of the Secretary's final decision, as provided in § 500.268.</P> <CITA>[54 FR 13330, Mar. 31, 1989]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Record</HD> <SECTION> <SECTNO>§ 500.270</SECTNO> <SUBJECT>Retention of official record.</SUBJECT> <P>The official record of every completed administrative hearing provided by these regulations shall be maintained and filed under the custody and control of the Chief Administrative Law Judge.</P> </SECTION> <SECTION> <SECTNO>§ 500.271</SECTNO> <SUBJECT>Certification of official record.</SUBJECT> <P>Upon receipt of timely notice of appeal to a United States District Court pursuant to section 103(c) or 503(c) of the Act, the Chief Administrative Law Judge shall promptly certify and file with the appropriate United States District Court, a full, true, and correct copy of the entire record, including the transcript of proceedings.</P> </SECTION> </SUBJGRP> </SUBPART> </PART> <PART> <EAR>Pt. 501</EAR> <HD SOURCE="HED">PART 501—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>501.0</SECTNO> <SUBJECT>Introduction.</SUBJECT> <SECTNO>501.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>501.2</SECTNO> <SUBJECT>Coordination between Federal agencies.</SUBJECT> <SECTNO>501.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>501.4</SECTNO> <SUBJECT>Discrimination prohibited.</SUBJECT> <SECTNO>501.5</SECTNO> <SUBJECT>Waiver of rights prohibited.</SUBJECT> <SECTNO>501.6</SECTNO> <SUBJECT>Investigation authority of Secretary.</SUBJECT> <SECTNO>501.7</SECTNO> <SUBJECT>Cooperation with Federal officials.</SUBJECT> <SECTNO>501.8</SECTNO> <SUBJECT>Accuracy of information, statements, data.</SUBJECT> <SECTNO>501.9</SECTNO> <SUBJECT>Surety bond.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Enforcement</HD> <SECTNO>501.15</SECTNO> <SUBJECT>Enforcement.</SUBJECT> <SECTNO>501.16</SECTNO> <SUBJECT>Sanctions and remedies—general.</SUBJECT> <SECTNO>501.17</SECTNO> <SUBJECT>Concurrent actions.</SUBJECT> <SECTNO>501.18</SECTNO> <SUBJECT>Representation of the Secretary.</SUBJECT> <SECTNO>501.19</SECTNO> <SUBJECT>Civil money penalty assessment.</SUBJECT> <SECTNO>501.20</SECTNO> <SUBJECT>Debarment and revocation.</SUBJECT> <SECTNO>501.21</SECTNO> <SUBJECT>Failure to cooperate with investigations.</SUBJECT> <SECTNO>501.22</SECTNO> <SUBJECT>Civil money penalties—payment and collection.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Administrative Proceedings</HD> <SECTNO>501.30</SECTNO> <SUBJECT>Applicability of procedures and rules.</SUBJECT> <SUBJGRP> <HD SOURCE="HED">Procedures Relating To Hearing</HD> <SECTNO>501.31</SECTNO> <SUBJECT>Written notice of determination required.</SUBJECT> <SECTNO>501.32</SECTNO> <SUBJECT>Contents of notice.</SUBJECT> <SECTNO>501.33</SECTNO> <SUBJECT>Request for hearing.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Rules of Practice</HD> <SECTNO>501.34</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>501.35</SECTNO> <SUBJECT>Commencement of proceeding.</SUBJECT> <SECTNO>501.36</SECTNO> <SUBJECT>Caption of proceeding.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Referral for Hearing</HD> <SECTNO>501.37</SECTNO> <SUBJECT>Referral to Administrative Law Judge.</SUBJECT> <SECTNO>501.38</SECTNO> <SUBJECT>Notice of docketing.</SUBJECT> <SECTNO>501.39</SECTNO> <SUBJECT>Service upon attorneys for the Department of Labor—number of copies.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures Before Administrative Law Judge</HD> <SECTNO>501.40</SECTNO> <SUBJECT>Consent findings and order.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Post-Hearing Procedures</HD> <SECTNO>501.41</SECTNO> <SUBJECT>Decision and order of Administrative Law Judge.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Review of Administrative Law Judge's Decision</HD> <SECTNO>501.42</SECTNO> <SUBJECT>Procedures for initiating and undertaking review.</SUBJECT> <SECTNO>501.43</SECTNO> <SUBJECT>Responsibility of the Office of Administrative Law Judges (OALJ).</SUBJECT> <SECTNO>501.44</SECTNO> <SUBJECT>Additional information, if required.</SUBJECT> <SECTNO>501.45</SECTNO> <SUBJECT>Final decision of the Administrative Review Board.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Record</HD> <SECTNO>501.46</SECTNO> <SUBJECT>Retention of official record.</SUBJECT> <SECTNO>501.47</SECTNO> <SUBJECT>Certification.</SUBJECT> </SUBJGRP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>75 FR 6978, Feb. 12, 2010, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 501.0</SECTNO> <SUBJECT>Introduction.</SUBJECT> <P>The regulations in this part cover the enforcement of all contractual obligations, including requirements under 8 U.S.C. 1188 and 20 CFR part 655, subpart B applicable to the employment of H-<PRTPAGE P="54"/>2A workers and workers in corresponding employment, including obligations to offer employment to eligible United States (U.S.) workers and to not lay off or displace U.S. workers in a manner prohibited by the regulations in this part or 20 CFR part 655, subpart B.</P> </SECTION> <SECTION> <SECTNO>§ 501.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>(a) <E T="03">Statutory standards.</E> 8 U.S.C. 1188 provides that:</P> <P>(1) A petition to import an alien as an H-2A worker (as defined at 8 U.S.C. 1188) may not be approved by the Secretary of the Department of Homeland Security (DHS) unless the petitioner has applied for and received a temporary labor certification from the U.S. Secretary of Labor (Secretary). The temporary labor certification establishes that:</P> <P>(i) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and</P> <P>(ii) The employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the U.S. similarly employed.</P> <P>(2) The Secretary is authorized to take actions that assure compliance with the terms and conditions of employment under 8 U.S.C. 1188, the regulations at 20 CFR part 655, subpart B, or the regulations in this part, including imposing appropriate penalties, and seeking injunctive relief and specific performance of contractual obligations. See 8 U.S.C. 1188(g)(2).</P> <P>(b) <E T="03">Role of the Employment and Training Administration (ETA).</E> The issuance and denial of labor certification under 8 U.S.C. 1188 has been delegated by the Secretary to ETA, an agency within the U.S. Department of Labor (the Department or DOL), who in turn has delegated that authority to the Office of Foreign Labor Certification (OFLC). In general, matters concerning the obligations of an employer of H-2A workers related to the labor certification process are administered by OFLC, including obligations and assurances made by employers, overseeing employer recruitment and assuring program integrity. The regulations pertaining to the issuance, denial, and revocation of labor certification for temporary foreign workers by the OFLC are found in 20 CFR part 655, subpart B.</P> <P>(c) <E T="03">Role of the Wage and Hour Division (WHD).</E> Certain investigatory, inspection, and law enforcement functions to carry out the provisions under 8 U.S.C. 1188 have been delegated by the Secretary to the WHD. In general, matters concerning the obligations under a work contract between an employer of H-2A workers and the H-2A workers and workers in corresponding employment are enforced by WHD, including whether employment was offered to U.S. workers as required under 8 U.S.C. 1188 or 20 CFR part 655, subpart B, or whether U.S. workers were laid off or displaced in violation of program requirements. Included within the enforcement responsibility of WHD are such matters as the payment of required wages, transportation, meals, and housing provided during the employment. The WHD has the responsibility to carry out investigations, inspections, and law enforcement functions and in appropriate instances to impose penalties, to debar from future certifications, to recommend revocation of existing certification(s), and to seek injunctive relief and specific performance of contractual obligations, including recovery of unpaid wages and reinstatement of laid off or displaced U.S. workers.</P> <P>(d) <E T="03">Effect of regulations.</E> The enforcement functions carried out by the WHD under 8 U.S.C. 1188, 20 CFR part 655, subpart B, and the regulations in this part apply to the employment of any H-2A worker and any other worker in corresponding employment as the result of any <E T="03">Application for Temporary Employment Certification</E> filed with the Department on and after March 15, 2010.</P> </SECTION> <SECTION> <SECTNO>§ 501.2</SECTNO> <SUBJECT>Coordination between Federal agencies.</SUBJECT> <P>(a) Complaints received by ETA or any State Workforce Agency (SWA) regarding contractual H-2A labor standards between the employer and the employee will be immediately forwarded <PRTPAGE P="55"/>to the appropriate WHD office for appropriate action under the regulations in this part.</P> <P>(b) Information received in the course of processing applications, program integrity measures, or enforcement actions may be shared between OFLC and WHD or, where applicable to employer enforcement under the H-2A program, other agencies as appropriate, including the Department of State (DOS) and DHS.</P> <P>(c) A specific violation for which debarment is imposed will be cited in a single debarment proceeding. OFLC and the WHD may coordinate their activities to achieve this result. Copies of final debarment decisions will be forwarded to the DHS promptly.</P> </SECTION> <SECTION> <SECTNO>§ 501.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Definitions of terms used in this part.</E> </P> <P> <E T="03">Administrative Law Judge (ALJ).</E> A person within the Department's Office of Administrative Law Judges appointed pursuant to 5 U.S.C. 3105.</P> <P> <E T="03">Adverse effect wage rate (AEWR).</E> The annual weighted average hourly wage for field and livestock workers (combined) in the States or regions as published annually by the U.S. Department of Agriculture (USDA) based on its quarterly wage survey.</P> <P> <E T="03">Agent.</E> A legal entity or person, such as an association of agricultural employers, or an attorney for an association, that:</P> <P>(1) Is authorized to act on behalf of the employer for temporary agricultural labor certification purposes;</P> <P>(2) Is not itself an employer, or a joint employer, as defined in this section with respect to a specific <E T="03">Application for Temporary Employment Certification;</E> and</P> <P>(3) Is not under suspension, debarment, expulsion, or disbarment from practice before any court, the Department, the Executive Office for Immigration Review, or DHS under 8 CFR 292.3 or 1003.101.</P> <P> <E T="03">Agricultural association.</E> Any nonprofit or cooperative association of farmers, growers, or ranchers (including but not limited to processing establishments, canneries, gins, packing sheds, nurseries, or other similar fixed-site agricultural employers), incorporated or qualified under applicable State law, that recruits, solicits, hires, employs, furnishes, houses, or transports any worker that is subject to 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part. An agricultural association may act as the agent of an employer, or may act as the sole or joint employer of any worker subject to 8 U.S.C. 1188.</P> <P> <E T="03">Area of intended employment.</E> The geographic area within normal commuting distance of the place of the job opportunity for which the certification is sought. There is no rigid measure of distance that constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (<E T="03">e.g.,</E> average commuting times, barriers to reaching the worksite, or quality of the regional transportation network). If the place of intended employment is within a Metropolitan Statistical Area (MSA), including a multistate MSA, any place within the MSA is deemed to be within normal commuting distance of the place of intended employment. The borders of MSAs are not controlling in the identification of the normal commuting area; a location outside of an MSA may be within normal commuting distance of a location that is inside (<E T="03">e.g.,</E> near the border of) the MSA.</P> <P> <E T="03">Corresponding employment.</E> The employment of workers who are not H-2A workers by an employer who has an approved H-2A <E T="03">Application for Temporary Employment Certification</E> in any work included in the job order, or in any agricultural work performed by the H-2A workers. To qualify as corresponding employment the work must be performed during the validity period of the job order, including any approved extension thereof.</P> <P> <E T="03">Date of need.</E> The first date the employer requires the services of H-2A workers as indicated in the <E T="03">Application for Temporary Employment Certification.</E> </P> <P> <E T="03">Employee.</E> A person who is engaged to perform work for an employer, as defined under the general common law of agency. Some of the factors relevant to the determination of employee status include: The hiring party's right to control the manner and means by which the work is accomplished; the <PRTPAGE P="56"/>skill required to perform the work; the source of the instrumentalities and tools for accomplishing the work; the location of the work; the hiring party's discretion over when and how long to work; and whether the work is part of the regular business of the hiring party. Other applicable factors may be considered and no one factor is dispositive.</P> <P> <E T="03">Employer.</E> A person (including any individual, partnership, association, corporation, cooperative, firm, joint stock company, trust, or other organization with legal rights and duties) that:</P> <P>(1) Has a place of business (physical location) in the U.S. and a means by which it may be contacted for employment;</P> <P>(2) Has an employer relationship (such as the ability to hire, pay, fire, supervise or otherwise control the work of employee) with respect to an H-2A worker or a worker in corresponding employment; and</P> <P>(3) Possesses, for purposes of filing an <E T="03">Application for Temporary Employment Certification,</E> a valid Federal Employer Identification Number (FEIN).</P> <P> <E T="03">Federal holiday.</E> Legal public holiday as defined at 5 U.S.C. 6103.</P> <P> <E T="03">Fixed-site employer.</E> Any person engaged in agriculture who meets the definition of an employer, as those terms are defined in this part, who owns or operates a farm, ranch, processing establishment, cannery, gin, packing shed, nursery, or other similar fixed-site location where agricultural activities are performed and who recruits, solicits, hires, employs, houses, or transports any worker subject to 8 U.S.C. 1188, 20 CFR part 655, subpart B or this part, as incident to or in conjunction with the owner's or operator's own agricultural operation.</P> <P> <E T="03">H-2A Labor Contractor (H-2ALC).</E> Any person who meets the definition of employer under this part and is not a fixed-site employer, an agricultural association, or an employee of a fixed-site employer or agricultural association, as those terms are used in this part, who recruits, solicits, hires, employs, furnishes, houses, or transports any worker subject to 8 U.S.C. 1188, 20 CFR part 655, subpart B or this part.</P> <P> <E T="03">H-2A worker.</E> Any temporary foreign worker who is lawfully present in the U.S. and authorized by DHS to perform agricultural labor or services of a temporary or seasonal nature pursuant to 8 U.S.C. 1101(a)(15)(H)(ii)(a).</P> <P> <E T="03">Job offer.</E> The offer made by an employer or potential employer of H-2A workers to both U.S. and H-2A workers describing all the material terms and conditions of employment, including those relating to wages, working conditions, and other benefits.</P> <P> <E T="03">Job opportunity.</E> Full-time employment at a place in the U.S. to which U.S. workers can be referred.</P> <P> <E T="03">Job order.</E> The document containing the material terms and conditions of employment that is posted by the SWA on its inter- and intra-state job clearance systems based on the employer's Form ETA-790, as submitted to the SWA.</P> <P> <E T="03">Joint employment.</E> Where two or more employers each have sufficient definitional indicia of an employer to be considered the employer of a worker, those employers will be considered to jointly employ that worker. Each employer in a joint employment relationship to a worker is considered a joint employer of that worker.</P> <P> <E T="03">Prevailing wage.</E> Wage established pursuant to 20 CFR 653.501(d)(4).</P> <P> <E T="03">State Workforce Agency (SWA).</E> State government agency that receives funds pursuant to the Wagner-Peyser Act (29 U.S.C. 49 <E T="03">et seq.</E> to administer the State's public labor exchange activities.</P> <P> <E T="03">Successor in interest.</E> Where an employer has violated 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part, and has ceased doing business or cannot be located for purposes of enforcement, a successor in interest to that employer may be held liable for the duties and obligations of the violating employer in certain circumstances. The following factors, as used under Title VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance Act, may be considered in determining whether an employer is a successor in interest; no one factor is dispositive, but all of the circumstances will be considered as a whole:</P> <P>(1) Substantial continuity of the same business operations;</P> <P>(2) Use of the same facilities;<PRTPAGE P="57"/> </P> <P>(3) Continuity of the work force;</P> <P>(4) Similarity of jobs and working conditions;</P> <P>(5) Similarity of supervisory personnel;</P> <P>(6) Whether the former management or owner retains a direct or indirect interest in the new enterprise;</P> <P>(7) Similarity in machinery, equipment, and production methods;</P> <P>(8) Similarity of products and services; and</P> <P>(9) The ability of the predecessor to provide relief.</P> <P>For purposes of debarment only, the primary consideration will be the personal involvement of the firm's ownership, management, supervisors, and others associated with the firm in the violations at issue.</P> <P> <E T="03">Temporary agricultural labor certification.</E> Certification made by the OFLC Administrator with respect to an employer seeking to file with DHS a visa petition to employ one or more foreign nationals as an H-2A worker, pursuant to 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) and (c), and 1188.</P> <P> <E T="03">United States (U.S.).</E> The continental U.S., Alaska, Hawaii, the Commonwealth of Puerto Rico, and the territories of Guam, the Virgin Islands, and the Commonwealth of the Northern Mariana Islands (CNMI).</P> <P> <E T="03">United States worker (U.S. worker).</E> A worker who is:</P> <P>(1) A citizen or national of the U.S.; or</P> <P>(2) An alien who is lawfully admitted for permanent residence in the U.S., is admitted as a refugee under 8 U.S.C. 1157, is granted asylum under 8 U.S.C. 1158, or is an immigrant otherwise authorized (by the Immigration and Nationality Act (INA) or by DHS) to be employed in the U.S.; or</P> <P>(3) An individual who is not an unauthorized alien (as defined in 8 U.S.C. 1324a(h)(3)) with respect to the employment in which the worker is engaging.</P> <P> <E T="03">Wages.</E> All forms of cash remuneration to a worker by an employer in payment for personal services.</P> <P> <E T="03">WHD Administrator.</E> The Administrator of the Wage and Hour Division (WHD), and such authorized representatives as may be designated to perform any of the functions of the WHD Administrator under this part.</P> <P> <E T="03">Work contract.</E> All the material terms and conditions of employment relating to wages, hours, working conditions, and other benefits, including those required by 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part. The contract between the employer and the worker may be in the form of a separate written document. In the absence of a separate written work contract incorporating the required terms and conditions of employment, agreed to by both the employer and the worker, the work contract at a minimum will be the terms of the job order and any obligations required under 8 U.S.C. 1188, 20 CFR part 655, subpart B or this part.</P> <P>(b) <E T="03">Definition of agricultural labor or services.</E> For the purposes of this part, agricultural labor or services, pursuant to 8 U.S.C. 1101(a)(15)(H)(ii)(a), is defined as: agricultural labor as defined and applied in sec. 3121(g) of the Internal Revenue Code of 1986 at 26 U.S.C. 3121(g); agriculture as defined and applied in sec. 3(f) of the Fair Labor Standards Act of 1938 (FLSA) at 29 U.S.C. 203(f); the pressing of apples for cider on a farm; or logging employment. An occupation included in either statutory definition shall be agricultural labor or services, notwithstanding the exclusion of that occupation from the other statutory definition. For informational purposes, the statutory provisions are listed below.</P> <P>(1)(i) <E T="03">Agricultural labor for the purpose of paragraph (b) of this section means all service performed:</E> </P> <P>(A) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife;</P> <P>(B) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm;<PRTPAGE P="58"/> </P> <P>(C) In connection with the production or harvesting of any commodity defined as an agricultural commodity in section 15(g) of the Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes;</P> <P>(D) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half of the commodity with respect to which such service is performed;</P> <P>(E) In the employ of a group of operators of farms (other than a cooperative organization) in the performance of service described in paragraph (b)(1)(iv) but only if such operators produced all of the commodity with respect to which such service is performed. For purposes of this paragraph, any unincorporated group of operators shall be deemed a cooperative organization if the number of operators comprising such group is more than 20 at any time during the calendar year in which such service is performed;</P> <P>(F) The provisions of paragraphs (b)(1)(iv) and (b)(1)(v) of this section shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption; or</P> <P>(G) On a farm operated for profit if such service is not in the course of the employer's trade or business or is domestic service in a private home of the employer.</P> <P>(ii) As used in this section, the term farm includes stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards.</P> <P>(2) <E T="03">Agriculture.</E> For purposes of paragraph (b) of this section, agriculture means farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in 1141j(g) of title 12, the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. See sec. 29 U.S.C. 203(f), as amended (sec. 3(f) of the FLSA, as codified). Under 12 U.S.C. 1141j(g) agricultural commodities include, in addition to other agricultural commodities, crude gum (oleoresin) from a living tree, and the following products as processed by the original producer of the crude gum (oleoresin) from which derived: Gum spirits of turpentine and gum rosin. In addition as defined in 7 U.S.C. 92, gum spirits of turpentine means spirits of turpentine made from gum (oleoresin) from a living tree and gum rosin means rosin remaining after the distillation of gum spirits of turpentine.</P> <P>(3) <E T="03">Apple pressing for cider.</E> The pressing of apples for cider on a farm, as the term farm is defined and applied in sec. 3121(g) of the Internal Revenue Code at 26 U.S.C. 3121(g) or as applied in sec. 3(f) of FLSA at 29 U.S.C. 203(f), pursuant to 29 CFR part 780.</P> <P>(4) <E T="03">Logging employment.</E> Operations associated with felling and moving trees and logs from the stump to the point of delivery, such as, but not limited to, marking danger trees and trees/logs to be cut to length, felling, limbing, bucking, debarking, chipping, yarding, loading, unloading, storing, and transporting machines, equipment and personnel to, from and between logging sites.</P> <P>(c) <E T="03">Definition of a temporary or seasonal nature.</E> For the purposes of this <PRTPAGE P="59"/>part, employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, and requires labor levels far above those necessary for ongoing operations. Employment is of a temporary nature where the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 1 year.</P> </SECTION> <SECTION> <SECTNO>§ 501.4</SECTNO> <SUBJECT>Discrimination prohibited.</SUBJECT> <P>(a) A person may not intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any person who has:</P> <P>(1) Filed a complaint under or related to 8 U.S.C. 1188 or the regulations in this part;</P> <P>(2) Instituted or caused to be instituted any proceedings related to 8 U.S.C. 1188 or the regulations in this part;</P> <P>(3) Testified or is about to testify in any proceeding under or related to 8 U.S.C. 1188 or the regulations in this part;</P> <P>(4) Consulted with an employee of a legal assistance program or an attorney on matters related to 8 U.S.C. 1188, or to this subpart or any other Department regulation promulgated pursuant to 8 U.S.C. 1188; or</P> <P>(5) Exercised or asserted on behalf of himself or others any right or protection afforded by 8 U.S.C. 1188 or the regulations in this part.</P> <P>(b) Allegations of discrimination against any person under paragraph (a) of this section will be investigated by the WHD. Where the WHD has determined through investigation that such allegations have been substantiated, appropriate remedies may be sought. The WHD may assess civil money penalties, seek injunctive relief, and/or seek additional remedies necessary to make the employee whole as a result of the discrimination, as appropriate, initiate debarment proceedings, and recommend to OFLC revocation of any such violator's current labor certification. Complaints alleging discrimination against workers or immigrants based on citizenship or immigration status may also be forwarded by the WHD to the Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Employment Practices.</P> </SECTION> <SECTION> <SECTNO>§ 501.5</SECTNO> <SUBJECT>Waiver of rights prohibited.</SUBJECT> <P>A person may not seek to have an H-2A worker, a worker in corresponding employment, or a U.S. worker improperly rejected for employment or improperly laid off or displaced waive any rights conferred under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in these parts. Any agreement by an employee purporting to waive or modify any rights given to said person under these provisions shall be void as contrary to public policy except as follows:</P> <P>(a) Waivers or modifications of rights or obligations hereunder in favor of the Secretary shall be valid for purposes of enforcement; and</P> <P>(b) Agreements in settlement of private litigation are permitted.</P> </SECTION> <SECTION> <SECTNO>§ 501.6</SECTNO> <SUBJECT>Investigation authority of Secretary.</SUBJECT> <P>(a) <E T="03">General.</E> The Secretary, through the WHD, may investigate to determine compliance with obligations under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part, either pursuant to a complaint or otherwise, as may be appropriate. In connection with such an investigation, WHD may enter and inspect any premises, land, property, housing, vehicles, and records (and make transcriptions thereof), question any person and gather any information as may be appropriate.</P> <P>(b) <E T="03">Confidential investigation.</E> The WHD shall conduct investigations in a manner that protects the confidentiality of any complainant or other person who provides information to the Secretary in good faith.</P> <P>(c) <E T="03">Report of violations.</E> Any person may report a violation of the obligations imposed by 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part to the Secretary by advising any local office of the SWA, ETA, WHD or any other authorized representative of the Secretary. The office or person receiving such a report shall refer it to the appropriate office of WHD for the geographic area in which <PRTPAGE P="60"/>the reported violation is alleged to have occurred.</P> </SECTION> <SECTION> <SECTNO>§ 501.7</SECTNO> <SUBJECT>Cooperation with Federal officials.</SUBJECT> <P>All persons must cooperate with any Federal officials assigned to perform an investigation, inspection, or law enforcement function pursuant to 8 U.S.C. 1188 and the regulations in this part during the performance of such duties. The WHD will take such action as it deems appropriate, including initiating debarment proceedings, seeking an injunction to bar any failure to cooperate with an investigation and/or assessing a civil money penalty therefor. In addition, the WHD will report the matter to OFLC, and may recommend to OFLC that the person's existing labor certification be revoked. In addition, Federal statutes prohibiting persons from interfering with a Federal officer in the course of official duties are found at 18 U.S.C. 111 and 18 U.S.C. 114.</P> </SECTION> <SECTION> <SECTNO>§ 501.8</SECTNO> <SUBJECT>Accuracy of information, statements, data.</SUBJECT> <P>Information, statements and data submitted in compliance with 8 U.S.C. 1188 or the regulations in this part are subject to 18 U.S.C. 1001, which provides, with regard to statements or entries generally, that whoever, in any matter within the jurisdiction of any department or agency of the U.S., knowingly and willfully falsifies, conceals, or covers up a material fact by any trick, scheme, or device, or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both.</P> </SECTION> <SECTION> <SECTNO>§ 501.9</SECTNO> <SUBJECT>Surety bond.</SUBJECT> <P>(a) Every H-2ALC must obtain a surety bond demonstrating its ability to discharge financial obligations under the H-2A program. The original bond instrument issued by the surety must be submitted with the <E T="03">Application for Temporary Employment Certification.</E> At a minimum, the bond instrument must identify the name, address, phone number, and contact person for the surety, and specify the amount of the bond (as required in paragraph (c) of this section), the date of issuance and expiration and any identifying designation used by the surety for the bond.</P> <P>(b) The bond must be payable to the Administrator, Wage and Hour Division, United States Department of Labor, 200 Constitution Avenue, NW., Room S-3502, Washington, DC 20210. The bond must obligate the surety to pay any sums to the WHD Administrator for wages and benefits owed to an H-2A worker or to a worker engaged in corresponding employment, or to a U.S. worker improperly rejected or improperly laid off or displaced, based on a final decision finding a violation or violations of this part or 20 CFR part 655, subpart B relating to the labor certification the bond is intended to cover. The aggregate liability of the surety shall not exceed the face amount of the bond. The bond must be written to cover liability incurred during the term of the period listed in the <E T="03">Application for Temporary Employment Certification</E> for labor certification made by an H-2ALC, and shall be amended to cover any extensions of the labor certification requested by an H-2ALC.</P> <P>(c) The bond must be in the amount of $5,000 for a labor certification for which an H-2ALC will employ fewer than 25 workers; $10,000 for a labor certification for which an H-2ALC will employ 25 to 49 workers; $20,000 for a labor certification for which an H-2ALC will employ 50 to 74 workers; $50,000 for a labor certification for which an H-2ALC will employ 75 to 99 workers; and $75,000 for a labor certification for which an H-2ALC will employ 100 or more workers. The WHD Administrator may require that an H-2ALC obtain a bond with a higher face value amount after notice and opportunity for hearing when it is shown based on objective criteria that the amount of the bond is insufficient to meet potential liabilities.</P> <P>(d) The bond must remain in force for a period of no less than 2 years from the date on which the labor certification expires. If the WHD has commenced any enforcement action under the regulations in this part against an <PRTPAGE P="61"/>H-2ALC employer or any successor in interest by that date, the bond shall remain in force until the conclusion of such action and any related appeal or related litigation. Surety bonds may not be canceled or terminated unless 45 days' notice is provided by the surety in writing to the WHD Administrator at the address set forth in paragraph (b) of this section.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Enforcement</HD> <SECTION> <SECTNO>§ 501.15</SECTNO> <SUBJECT>Enforcement.</SUBJECT> <P>The investigation, inspection, and law enforcement functions to carry out the provisions of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part, as provided in the regulations in this part for enforcement by the WHD, pertain to the employment of any H-2A worker, any worker in corresponding employment, or any U.S. worker improperly rejected for employment or improperly laid off or displaced. Such enforcement includes the work contract provisions as defined in § 501.3(a).</P> </SECTION> <SECTION> <SECTNO>§ 501.16</SECTNO> <SUBJECT>Sanctions and remedies—general.</SUBJECT> <P>Whenever the WHD Administrator believes that 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part have been violated, such action shall be taken and such proceedings instituted as deemed appropriate, including (but not limited to) the following:</P> <P>(a)(1) Institute appropriate administrative proceedings, including: the recovery of unpaid wages (including recovery of recruitment fees paid in the absence of required contract clauses (see 20 CFR 655.135(k)); the enforcement of provisions of the work contract, 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part; the assessment of a civil money penalty; make whole relief for any person who has been discriminated against; reinstatement and make whole relief for any U.S. worker who has been improperly rejected for employment, laid off or displaced; or debarment for up to 3 years.</P> <P>(2) The remedies referenced in paragraph (a)(1) of this section will be sought either directly from the employer, or from its successor in interest, as appropriate. In the case of an H-2ALC, the remedies will be sought from the H-2ALC directly and/or monetary relief (other than civil money penalties) from the insurer who issued the surety bond to the H-2ALC, as required by 20 CFR part 655, subpart B and § 501.9 of this part.</P> <P>(b) Petition any appropriate District Court of the U.S. for temporary or permanent injunctive relief, including to prohibit the withholding of unpaid wages and/or for reinstatement, or to restrain violation of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part, by any person.</P> <P>(c) Petition any appropriate District Court of the U.S. for an order directing specific performance of covered contractual obligations.</P> </SECTION> <SECTION> <SECTNO>§ 501.17</SECTNO> <SUBJECT>Concurrent actions.</SUBJECT> <P>OFLC has primary responsibility to make all determinations regarding the issuance, denial, or revocation of a labor certification as described in § 501.1(b) of this part and in 20 CFR part 655, subpart B. The WHD has primary responsibility to make all determinations regarding the enforcement functions as described in § 501.1(c) of this part. The taking of any one of the actions referred to above shall not be a bar to the concurrent taking of any other action authorized by 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part. OFLC and the WHD have concurrent jurisdiction to impose a debarment remedy under 20 CFR 655.182 or under § 501.20 of the regulations in this part.</P> </SECTION> <SECTION> <SECTNO>§ 501.18</SECTNO> <SUBJECT>Representation of the Secretary.</SUBJECT> <P>The Solicitor of Labor, through authorized representatives, shall represent the WHD Administrator and the Secretary in all administrative hearings under 8 U.S.C. 1188 and the regulations in this part.</P> </SECTION> <SECTION> <SECTNO>§ 501.19</SECTNO> <SUBJECT>Civil money penalty assessment.</SUBJECT> <P>(a) A civil money penalty may be assessed by the WHD Administrator for each violation of the work contract, or the obligations imposed by 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the <PRTPAGE P="62"/>regulations in this part. Each failure to pay an individual worker properly or to honor the terms or conditions of a worker's employment required by 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part constitutes a separate violation.</P> <P>(b) In determining the amount of penalty to be assessed for each violation, the WHD Administrator shall consider the type of violation committed and other relevant factors. The factors that may be considered include, but are not limited to, the following:</P> <P>(1) Previous history of violation(s) of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part;</P> <P>(2) The number of H-2A workers, workers in corresponding employment, or U.S. workers who were and/or are affected by the violation(s);</P> <P>(3) The gravity of the violation(s);</P> <P>(4) Efforts made in good faith to comply with 8 U.S.C. 1188, 20 CFR part 655, subpart B, and the regulations in this part;</P> <P>(5) Explanation from the person charged with the violation(s);</P> <P>(6) Commitment to future compliance, taking into account the public health, interest or safety, and whether the person has previously violated 8 U.S.C. 1188;</P> <P>(7) The extent to which the violator achieved a financial gain due to the violation, or the potential financial loss or potential injury to the workers.</P> <P>(c) A civil money penalty for each violation of the work contract or a requirement of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part will not exceed $1,500 per violation, with the following exceptions:</P> <P>(1) A civil money penalty for each willful violation of the work contract, or of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part, or for each act of discrimination prohibited by § 501.4 shall not exceed $5,000;</P> <P>(2) A civil money penalty for a violation of a housing or transportation safety and health provision of the work contract, or any obligation under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part, that proximately causes the death or serious injury of any worker shall not exceed $50,000 per worker;</P> <P>(3) For purposes of this section, the term serious injury includes, but is not limited to:</P> <P>(i) Permanent loss or substantial impairment of one of the senses (sight, hearing, taste, smell, tactile sensation);</P> <P>(ii) Permanent loss or substantial impairment of the function of a bodily member, organ or mental faculty, including the loss of all or part of an arm, leg, foot, hand or other body part; or</P> <P>(iii) Permanent paralysis or substantial impairment that causes loss of movement or mobility of an arm, leg, foot, hand or other body part.</P> <P>(4) A civil money penalty for a repeat or willful violation of a housing or transportation safety and health provision of the work contract, or any obligation under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part, that proximately causes the death or serious injury of any worker, shall not exceed $100,000 per worker.</P> <P>(d) A civil money penalty for failure to cooperate with a WHD investigation shall not exceed $5,000 per investigation.</P> <P>(e) A civil money penalty for laying off or displacing any U.S. worker employed in work or activities that are encompassed by the approved <E T="03">Application for Temporary Employment Certification</E> for H-2A workers in the area of intended employment either within 60 days preceding the date of need or during the validity period of the job order, including any approved extension thereof, other than for a lawful, job-related reason, shall not exceed $15,000 per violation per worker.</P> <P>(f) A civil money penalty for improperly rejecting a U.S. worker who is an applicant for employment, in violation of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part, shall not exceed $15,000 per violation per worker.</P> </SECTION> <SECTION> <SECTNO>§ 501.20</SECTNO> <SUBJECT>Debarment and revocation.</SUBJECT> <P>(a) <E T="03">Debarment of an employer.</E> The WHD Administrator may debar an employer or any successor in interest to that employer from receiving future labor certifications under 20 CFR part 655, subpart B, subject to the time limits set forth in paragraph (c) of this <PRTPAGE P="63"/>section, if: the WHD Administrator finds that the employer substantially violated a material term or condition of its temporary labor certification, with respect to H-2A workers, workers in corresponding employment, or U.S. workers improperly rejected for employment, or improperly laid off or displaced, by issuing a Notice of Debarment.</P> <P>(b) <E T="03">Debarment of an agent or an attorney.</E> The WHD Administrator may debar an agent or attorney from participating in any action under 8 U.S.C. 1188, 20 CFR part 655, subpart B or 29 CFR part 501, if the WHD Administrator finds that the agent or attorney participated in an employer's substantial violation, by issuing a Notice of Debarment. The OFLC Administrator may not issue future labor certifications to any employer represented by a debarred agent or attorney, subject to the time limits set forth in paragraph (c) of this section.</P> <P>(c) <E T="03">Statute of Limitations and Period of Debarment.</E> (1) The WHD Administrator must issue any Notice of Debarment no later than 2 years after the occurrence of the violation.</P> <P>(2) No employer, attorney, or agent may be debarred under this subpart for more than 3 years from the date of the final agency decision.</P> <P>(d) <E T="03">Definition of violation.</E> For the purposes of this section, a violation includes:</P> <P>(1) One or more acts of commission or omission on the part of the employer or the employer's agent which involve:</P> <P>(i) Failure to pay or provide the required wages, benefits or working conditions to the employer's H-2A workers and/or workers in corresponding employment;</P> <P>(ii) Failure, except for lawful, job-related reasons, to offer employment to qualified U.S. workers who applied for the job opportunity for which certification was sought;</P> <P>(iii) Failure to comply with the employer's obligations to recruit U.S. workers;</P> <P>(iv) Improper layoff or displacement of U.S. workers or workers in corresponding employment;</P> <P>(v) Failure to comply with one or more sanctions or remedies imposed by the WHD Administrator for violation(s) of contractual or other H-2A obligations, or with one or more decisions or orders of the Secretary or a court under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part;</P> <P>(vi) Impeding an investigation of an employer under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part;</P> <P>(vii) Employing an H-2A worker outside the area of intended employment, or in an activity/activities not listed in the job order or outside the validity period of employment of the job order, including any approved extension thereof;</P> <P>(viii) A violation of the requirements of 20 CFR 655.135(j) or (k);</P> <P>(ix) A violation of any of the provisions listed in § 501.4(a) of this subpart; or</P> <P>(x) A single heinous act showing such flagrant disregard for the law that future compliance with program requirements cannot reasonably be expected.</P> <P>(2) In determining whether a violation is so substantial as to merit debarment, the factors set forth in § 501.19(b) shall be considered.</P> <P>(e) <E T="03">Procedural Requirements.</E> The Notice of Debarment must be in writing, must state the reason for the debarment finding, including a detailed explanation of the grounds for and the duration of the debarment, must identify appeal opportunities under § 501.33 and a timeframe under which such rights must be exercised and must comply with § 501.32. The debarment will take effect 30 days from the date the Notice of Debarment is issued, unless a request for review is properly filed within 30 days from the issuance of the Notice of Debarment. The timely filing of an administrative appeal stays the debarment pending the outcome of the appeal as provided in § 501.33(d).</P> <P>(f) <E T="03">Debarment involving members of associations.</E> If, after investigation, the WHD Administrator determines that an individual employer-member of a joint employer association has committed a substantial violation, the debarment determination will apply only to that member unless the WHD Administrator determines that the association or another association member participated in the violation, in which <PRTPAGE P="64"/>case the debarment will be invoked against the association or other complicit association member(s) as well.</P> <P>(g) <E T="03">Debarment involving associations acting as sole employers.</E> If, after investigation, the WHD Administrator determines that an association acting as a sole employer has committed a substantial violation, the debarment determination will apply only to the association and any successor in interest to the debarred association.</P> <P>(h) <E T="03">Debarment involving associations acting as joint employers.</E> If, after investigation, the WHD Administrator determines that an association acting as a joint employer with its members has committed a substantial violation, the debarment determination will apply only to the association, and will not be applied to any individual employer-member of the association. However, if the WHD Administrator determines that the member participated in, had knowledge of, or had reason to know of the violation, the debarment may be invoked against the complicit association member as well. An association debarred from the H-2A temporary labor certification program will not be permitted to continue to file as a joint employer with its members during the period of the debarment.</P> <P>(i) <E T="03">Revocation.</E> The WHD may recommend to the OFLC Administrator the revocation of a temporary agricultural labor certification if the WHD finds that the employer:</P> <P>(1) Substantially violated a material term or condition of the approved temporary labor certification.</P> <P>(2) Failed to cooperate with a DOL investigation or with a DOL official performing an investigation, inspection, or law enforcement function under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part; or</P> <P>(3) Failed to comply with one or more sanctions or remedies imposed by the WHD, or with one or more decisions or orders of the Secretary or a court order secured by the Secretary under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part.</P> </SECTION> <SECTION> <SECTNO>§ 501.21</SECTNO> <SUBJECT>Failure to cooperate with investigations.</SUBJECT> <P>(a) No person shall refuse to cooperate with any employee of the Secretary who is exercising or attempting to exercise this investigative or enforcement authority.</P> <P>(b) Where an employer (or employer's agent or attorney) does not cooperate with an investigation concerning the employment of an H-2A worker, a worker in corresponding employment, or a U.S. worker who has been improperly rejected for employment or improperly laid off or displaced, WHD may make such information available to OFLC and may recommend that OFLC revoke the existing certification that is the basis for the employment of the H-2A workers giving rise to the investigation. In addition, WHD may take such action as appropriate, including initiating proceedings for the debarment of the employer from future certification for up to 3 years, seeking an injunction, and/or assessing civil money penalties against any person who has failed to cooperate with a WHD investigation. The taking of any one action shall not bar the taking of any additional action.</P> </SECTION> <SECTION> <SECTNO>§ 501.22</SECTNO> <SUBJECT>Civil money penalties—payment and collection.</SUBJECT> <P>Where a civil money penalty is assessed in a final order by the WHD Administrator, by an ALJ, or by the Administrative Review Board (ARB), the amount of the penalty must be received by the WHD Administrator within 30 days of the date of the final order. The person assessed such penalty shall remit the amount ordered to the WHD Administrator by certified check or by money order, made payable to the Wage and Hour Division, United States Department of Labor. The remittance shall be delivered or mailed to the WHD Regional Office for the area in which the violations occurred.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Administrative Proceedings</HD> <SECTION> <SECTNO>§ 501.30</SECTNO> <SUBJECT>Applicability of procedures and rules.</SUBJECT> <P>The procedures and rules contained herein prescribe the administrative <PRTPAGE P="65"/>process that will be applied with respect to a determination to assess civil money penalties, to debar, or to increase the amount of a surety bond and which may be applied to the enforcement of provisions of the work contract, or obligations under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part, or to the collection of monetary relief due as a result of any violation. Except with respect to the imposition of civil money penalties, debarment, or an increase in the amount of a surety bond, the Secretary may, in the Secretary's discretion, seek enforcement action in Federal court without resort to any administrative proceedings.</P> </SECTION> <SUBJGRP> <HD SOURCE="HED">Procedures Relating To Hearing</HD> <SECTION> <SECTNO>§ 501.31</SECTNO> <SUBJECT>Written notice of determination required.</SUBJECT> <P>Whenever the WHD Administrator decides to assess a civil money penalty, to debar, to increase a surety bond, or to proceed administratively to enforce contractual obligations, or obligations under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part, including for the recovery of the monetary relief, the person against whom such action is taken shall be notified in writing of such determination.</P> </SECTION> <SECTION> <SECTNO>§ 501.32</SECTNO> <SUBJECT>Contents of notice.</SUBJECT> <P>The notice required by § 501.31 shall:</P> <P>(a) Set forth the determination of the WHD Administrator including the amount of any monetary relief due or actions necessary to fulfill a contractual obligation or obligations under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part, the amount of any civil money penalty assessment, whether debarment is sought and the term, and any change in the amount of the surety bond, and the reason or reasons therefor.</P> <P>(b) Set forth the right to request a hearing on such determination.</P> <P>(c) Inform any affected person or persons that in the absence of a timely request for a hearing, the determination of the WHD Administrator shall become final and unappealable.</P> <P>(d) Set forth the time and method for requesting a hearing, and the procedures relating thereto, as set forth in § 501.33.</P> </SECTION> <SECTION> <SECTNO>§ 501.33</SECTNO> <SUBJECT>Request for hearing.</SUBJECT> <P>(a) Any person desiring review of a determination referred to in § 501.32, including judicial review, shall make a written request for an administrative hearing to the official who issued the determination at the WHD address appearing on the determination notice, no later than 30 days after the date of issuance of the notice referred to in § 501.32.</P> <P>(b) No particular form is prescribed for any request for hearing permitted by this part. However, any such request shall:</P> <P>(1) Be typewritten or legibly written;</P> <P>(2) Specify the issue or issues stated in the notice of determination giving rise to such request;</P> <P>(3) State the specific reason or reasons why the person requesting the hearing believes such determination is in error;</P> <P>(4) Be signed by the person making the request or by an authorized representative of such person; and</P> <P>(5) Include the address at which such person or authorized representative desires to receive further communications relating thereto.</P> <P>(c) The request for such hearing must be received by the official who issued the determination, at the WHD address appearing on the determination notice, within the time set forth in paragraph (a) of this section. Requests may be made by certified mail or by means normally assuring overnight delivery.</P> <P>(d) The determination shall take effect on the start date identified in the written notice of determination, unless an administrative appeal is properly filed. The timely filing of an administrative appeal stays the determination pending the outcome of the appeal proceedings, provided that any surety bond remains in effect until the conclusion of any such proceedings.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Rules of Practice</HD> <SECTION> <SECTNO>§ 501.34</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) Except as specifically provided in the regulations in this part, the Rules of Practice and Procedure for Administrative Hearings Before the Office of <PRTPAGE P="66"/>Administrative Law Judges established by the Secretary at 29 CFR part 18 shall apply to administrative proceedings described in this part.</P> <P>(b) As provided in the Administrative Procedure Act, 5 U.S.C. 556, any oral or documentary evidence may be received in proceedings under this part. The Federal Rules of Evidence and subpart B of the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (29 CFR part 18, subpart B) will not apply, but principles designed to ensure production of relevant and probative evidence shall guide the admission of evidence. The ALJ may exclude evidence which is immaterial, irrelevant, or unduly repetitive.</P> </SECTION> <SECTION> <SECTNO>§ 501.35</SECTNO> <SUBJECT>Commencement of proceeding.</SUBJECT> <P>Each administrative proceeding permitted under 8 U.S.C. 1188 and the regulations in this part shall be commenced upon receipt of a timely request for hearing filed in accordance with § 501.33.</P> </SECTION> <SECTION> <SECTNO>§ 501.36</SECTNO> <SUBJECT>Caption of proceeding.</SUBJECT> <P>(a) Each administrative proceeding instituted under 8 U.S.C. 1188 and the regulations in this part shall be captioned in the name of the person requesting such hearing, and shall be styled as follows:</P> <P>In the Matter of ______, Respondent.</P> <P>(b) For the purposes of such administrative proceedings the WHD Administrator shall be identified as plaintiff and the person requesting such hearing shall be named as respondent.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Referral for Hearing</HD> <SECTION> <SECTNO>§ 501.37</SECTNO> <SUBJECT>Referral to Administrative Law Judge.</SUBJECT> <P>(a) Upon receipt of a timely request for a hearing filed pursuant to and in accordance with § 501.33, the WHD Administrator, by the Associate Solicitor for the Division of Fair Labor Standards or by the Regional Solicitor for the Region in which the action arose, will, by Order of Reference, promptly refer a copy of the notice of administrative determination complained of, and the original or a duplicate copy of the request for hearing signed by the person requesting such hearing or by the authorized representative of such person, to the Chief ALJ, for a determination in an administrative proceeding as provided herein. The notice of administrative determination and request for hearing shall be filed of record in the Office of the Chief Administrative Law Judge and shall, respectively, be given the effect of a complaint and answer thereto for purposes of the administrative proceeding, subject to any amendment that may be permitted under the regulations in this part or 29 CFR part 18.</P> <P>(b) A copy of the Order of Reference, together with a copy of the regulations in this part, shall be served by counsel for the WHD Administrator upon the person requesting the hearing, in the manner provided in 29 CFR 18.3.</P> </SECTION> <SECTION> <SECTNO>§ 501.38</SECTNO> <SUBJECT>Notice of docketing.</SUBJECT> <P>Upon receipt of an Order of Reference, the Chief ALJ shall appoint an ALJ to hear the case. The ALJ shall promptly notify all interested parties of the docketing of the matter and shall set the time and place of the hearing. The date of the hearing shall be not more than 60 days from the date on which the Order of Reference was filed.</P> </SECTION> <SECTION> <SECTNO>§ 501.39</SECTNO> <SUBJECT>Service upon attorneys for the Department of Labor—number of copies.</SUBJECT> <P>Two copies of all pleadings and other documents required for any administrative proceeding provided herein shall be served on the attorneys for the DOL. One copy shall be served on the Associate Solicitor, Division of Fair Labor Standards, Office of the Solicitor, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, and one copy on the Attorney representing the Department in the proceeding.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures Before Administrative Law Judge</HD> <SECTION> <SECTNO>§ 501.40</SECTNO> <SUBJECT>Consent findings and order.</SUBJECT> <P>(a) <E T="03">General.</E> At any time after the commencement of a proceeding under this part, but prior to the reception of evidence in any such proceeding, a party may move to defer the receipt of <PRTPAGE P="67"/>any evidence for a reasonable time to permit negotiation of an agreement containing consent findings and an order disposing of the whole or any part of the proceeding. The allowance of such deferment and the duration thereof shall be at the discretion of the ALJ, after consideration of the nature of the proceeding, the requirements of the public interest, the representations of the parties, and the probability of an agreement being reached which will result in a just disposition of the issues involved.</P> <P>(b) <E T="03">Content.</E> Any agreement containing consent findings and an order disposing of a proceeding or any part thereof shall also provide:</P> <P>(1) That the order shall have the same force and effect as an order made after full hearing;</P> <P>(2) That the entire record on which any order may be based shall consist solely of the notice of administrative determination (or amended notice, if one is filed), and the agreement;</P> <P>(3) A waiver of any further procedural steps before the ALJ; and</P> <P>(4) A waiver of any right to challenge or contest the validity of the findings and order entered into in accordance with the agreement.</P> <P>(c) <E T="03">Submission.</E> On or before the expiration of the time granted for negotiations, the parties or their authorized representatives or their counsel may:</P> <P>(1) Submit the proposed agreement for consideration by the ALJ; or</P> <P>(2) Inform the ALJ that agreement cannot be reached.</P> <P>(d) <E T="03">Disposition.</E> In the event an agreement containing consent findings and an order is submitted within the time allowed therefor, the ALJ, within 30 days thereafter, shall, if satisfied with its form and substance, accept such agreement by issuing a decision based upon the agreed findings.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Post-Hearing Procedures</HD> <SECTION> <SECTNO>§ 501.41</SECTNO> <SUBJECT>Decision and order of Administrative Law Judge.</SUBJECT> <P>(a) The ALJ shall prepare, within 60 days after completion of the hearing and closing of the record, a decision on the issues referred by the WHD Administrator.</P> <P>(b) The decision of the ALJ shall include a statement of the findings and conclusions, with reasons and basis therefor, upon each material issue presented on the record. The decision shall also include an appropriate order which may affirm, deny, reverse, or modify, in whole or in part, the determination of the WHD Administrator. The reason or reasons for such order shall be stated in the decision.</P> <P>(c) The decision shall be served on all parties and the ARB.</P> <P>(d) The decision concerning civil money penalties, debarment, monetary relief, and/or enforcement of other contractual obligations under 8 U.S.C. 1188, 20 CFR part 655, subpart B, and/or this part, when served by the ALJ shall constitute the final agency order unless the ARB, as provided for in § 501.42, determines to review the decision.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Review of Administrative Law Judge's Decision</HD> <SECTION> <SECTNO>§ 501.42</SECTNO> <SUBJECT>Procedures for initiating and undertaking review.</SUBJECT> <P>(a) A respondent, the WHD, or any other party wishing review, including judicial review, of the decision of an ALJ shall, within 30 days of the decision of the ALJ, petition the ARB to review the decision. Copies of the petition shall be served on all parties and on the ALJ. If the ARB does not issue a notice accepting a petition for review of the decision within 30 days after receipt of a timely filing of the petition, or within 30 days of the date of the decision if no petition has been received, the decision of the ALJ shall be deemed the final agency action.</P> <P>(b) Whenever the ARB, either on the ARB's own motion or by acceptance of a party's petition, determines to review the decision of an ALJ, a notice of the same shall be served upon the ALJ and upon all parties to the proceeding.</P> </SECTION> <SECTION> <SECTNO>§ 501.43</SECTNO> <SUBJECT>Responsibility of the Office of Administrative Law Judges (OALJ).</SUBJECT> <P>Upon receipt of the ARB's Notice pursuant to § 501.42, the OALJ shall promptly forward a copy of the complete hearing record to the ARB.</P> </SECTION> <SECTION> <PRTPAGE P="68"/> <SECTNO>§ 501.44</SECTNO> <SUBJECT>Additional information, if required.</SUBJECT> <P>Where the ARB has determined to review such decision and order, the ARB shall notify the parties of:</P> <P>(a) The issue or issues raised;</P> <P>(b) The form in which submissions shall be made (<E T="03">i.e.,</E> briefs, oral argument, etc.); and</P> <P>(c) The time within which such presentation shall be submitted.</P> </SECTION> <SECTION> <SECTNO>§ 501.45</SECTNO> <SUBJECT>Final decision of the Administrative Review Board.</SUBJECT> <P>The ARB's final decision shall be issued within 90 days from the notice granting the petition and served upon all parties and the ALJ.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Record</HD> <SECTION> <SECTNO>§ 501.46</SECTNO> <SUBJECT>Retention of official record.</SUBJECT> <P>The official record of every completed administrative hearing provided by the regulations in this part shall be maintained and filed under the custody and control of the Chief ALJ, or, where the case has been the subject of administrative review, the ARB.</P> </SECTION> <SECTION> <SECTNO>§ 501.47</SECTNO> <SUBJECT>Certification.</SUBJECT> <P>Upon receipt of a complaint seeking review of a decision issued pursuant to this part filed in a U.S. District Court, after the administrative remedies have been exhausted, the Chief ALJ or, where the case has been the subject of administrative review, the ARB shall promptly index, certify and file with the appropriate U.S. District Court, a full, true, and correct copy of the entire record, including the transcript of proceedings.</P> </SECTION> </SUBJGRP> </SUBPART> </PART> <PART> <EAR>Pt. 502</EAR> <HD SOURCE="HED">PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009)</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>502.0</SECTNO> <SUBJECT>Introduction.</SUBJECT> <SECTNO>502.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>502.2</SECTNO> <SUBJECT>Coordination of intake between DOL agencies.</SUBJECT> <SECTNO>502.3</SECTNO> <SUBJECT>Discrimination prohibited.</SUBJECT> <SECTNO>502.4</SECTNO> <SUBJECT>Waiver of rights prohibited.</SUBJECT> <SECTNO>502.5</SECTNO> <SUBJECT>Investigation authority of Secretary.</SUBJECT> <SECTNO>502.6</SECTNO> <SUBJECT>Cooperation with DOL officials.</SUBJECT> <SECTNO>502.7</SECTNO> <SUBJECT>Accuracy of information, statements, data.</SUBJECT> <SECTNO>502.8</SECTNO> <SUBJECT>Surety bond.</SUBJECT> <SECTNO>502.10</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Enforcement of Work Contracts</HD> <SECTNO>502.15</SECTNO> <SUBJECT>Enforcement.</SUBJECT> <SECTNO>502.16</SECTNO> <SUBJECT>Sanctions and Remedies—General.</SUBJECT> <SECTNO>502.17</SECTNO> <SUBJECT>Concurrent actions.</SUBJECT> <SECTNO>502.18</SECTNO> <SUBJECT>Representation of the Secretary.</SUBJECT> <SECTNO>502.19</SECTNO> <SUBJECT>Civil money penalty assessment.</SUBJECT> <SECTNO>502.20</SECTNO> <SUBJECT>Debarment and revocation.</SUBJECT> <SECTNO>502.21</SECTNO> <SUBJECT>Failure to cooperate with investigations.</SUBJECT> <SECTNO>502.22</SECTNO> <SUBJECT>Civil money penalties—payment and collection.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED"> Subpart C—Administrative Proceedings</HD> <SECTNO>502.30</SECTNO> <SUBJECT>Applicability of procedures and rules.</SUBJECT> <SUBJGRP> <HD SOURCE="HED">Procedures Relating to Hearing</HD> <SECTNO>502.31</SECTNO> <SUBJECT>Written notice of determination required.</SUBJECT> <SECTNO>502.32</SECTNO> <SUBJECT>Contents of notice.</SUBJECT> <SECTNO>502.33</SECTNO> <SUBJECT>Request for hearing.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Rules of Practice</HD> <SECTNO>502.34</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>502.35</SECTNO> <SUBJECT>Commencement of proceeding.</SUBJECT> <SECTNO>502.36</SECTNO> <SUBJECT>Caption of proceeding.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Referral for Hearing</HD> <SECTNO>502.37</SECTNO> <SUBJECT>Referral to Administrative Law Judge.</SUBJECT> <SECTNO>502.38</SECTNO> <SUBJECT>Notice of docketing.</SUBJECT> <SECTNO>502.39</SECTNO> <SUBJECT>Service upon attorneys for the Department of Labor—number of copies.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures Before Administrative Law Judge</HD> <SECTNO>502.40</SECTNO> <SUBJECT>Consent findings and order.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Post-Hearing Procedures</HD> <SECTNO>502.41</SECTNO> <SUBJECT>Decision and order of Administrative Law Judge.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Review of Administrative Law Judge's Decision</HD> <SECTNO>502.42</SECTNO> <SUBJECT>Procedures for initiating and undertaking review.</SUBJECT> <SECTNO>502.43</SECTNO> <SUBJECT>Responsibility of the Office of Administrative Law Judges.</SUBJECT> <SECTNO>502.44</SECTNO> <SUBJECT>Additional information, if required.</SUBJECT> <SECTNO>502.45</SECTNO> <SUBJECT>Final decision of the Administrative Review Board.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Record</HD> <SECTNO>502.46</SECTNO> <SUBJECT>Retention of official record.</SUBJECT> <SECTNO>502.47</SECTNO> <SUBJECT>Certification.</SUBJECT> </SUBJGRP> </SUBPART> </CONTENTS> <AUTH> <PRTPAGE P="69"/> <HD SOURCE="HED">Authority:</HD> <P>8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>73 FR 77229, Dec. 18, 2008, unless otherwise noted.</P> </SOURCE> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 74 FR 26008, May 29, 2009, part 501 was redesignated as part 502, and newly designated part 502 was suspended, effective June 29, 2009.</P> </EFFDNOT> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 502.0</SECTNO> <SUBJECT>Introduction.</SUBJECT> <P>These regulations cover the enforcement of all contractual obligation provisions applicable to the employment of H-2A workers under sec. 218 of the Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA). These regulations are also applicable to the employment of United States (U.S.) workers newly hired by employers of H-2A workers in the same occupations as the H-2A workers during the period of time set forth in the labor certification approved by ETA as a condition for granting H-2A certification, including any extension thereof. Such U.S. workers hired by H-2A employers are hereafter referred to as engaged in corresponding employment.</P> </SECTION> <SECTION> <SECTNO>§ 502.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>(a) <E T="03">Statutory standard</E>. Section 218(a) of the INA provides that:</P> <P>(1) A petition to import an alien as an H-2A worker (as defined in the INA) may not be approved by the Secretary of the Department of Homeland Security (DHS) unless the petitioner has applied to the Secretary of the United States Department of Labor (Secretary) for a certification that:</P> <P>(i) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and</P> <P>(ii) The employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the U.S. similarly employed.</P> <P>(2) [Reserved]</P> <P>(b) <E T="03">Role of the Employment and Training Administration (ETA)</E>. The issuance and denial of labor certification under sec. 218 of the INA has been delegated by the Secretary to ETA, an agency within the U.S. Department of Labor (the Department or DOL). In general, matters concerning the obligations of an employer of H-2A workers related to the labor certification process are administered and enforced by ETA. Included within ETA's jurisdiction are issues such as whether U.S. workers are available, whether adequate recruitment has been conducted, whether there is a strike or lockout, the methodology for establishing AEWR, whether workers' compensation insurance has been provided, whether employment was offered to U.S. workers as required by sec. 218 of the INA and regulations at 20 CFR part 655, subpart B, and other similar matters. The regulations pertaining to the issuance and denial of labor certification for temporary alien workers by the ETA are found in 20 CFR part 655, subpart B.</P> <P>(c) <E T="03">Role of the Employment Standards Administration (ESA), Wage and Hour Division (WHD)</E>. (1) The Secretary is authorized to take actions that assure compliance with the terms and conditions of employment under sec. 218 of the INA, the regulations at 20 CFR part 655, subpart B, or these regulations, including the assessment of civil money penalties and seeking injunctive relief and specific performance of contractual obligations. <E T="03">See</E> 8 U.S.C. 1188(g)(2).</P> <P>(2) Certain investigatory, inspection, and law enforcement functions to carry out the provisions of sec. 218 of the INA have been delegated by the Secretary to the ESA, WHD. In general, matters concerning the obligations under a work contract between an employer of H-2A workers and the H-2A workers and U.S. workers hired in corresponding employment by H-2A employers are enforced by ESA, including whether employment was offered to U.S. workers as required under sec. 218 of the INA or 20 CFR part 655, subpart B, or whether U.S. workers were laid off or displaced in violation of program requirements. Included within the enforcement responsibility of WHD are such matters as the payment of required wages, transportation, meals, <PRTPAGE P="70"/>and housing provided during the employment. The WHD has the responsibility to carry out investigations, inspections, and law enforcement functions and in appropriate instances impose penalties, recommend revocation of existing certification(s) or debarment from future certifications, and seek injunctive relief and specific performance of contractual obligations, including recovery of unpaid wages (either directly from the employer or in the case of an H-2A Labor Contractors (H-2ALC), from the H-2ALC directly and/or from the insurer who issued the surety bond to the H-2ALC as required by 20 CFR part 655, subpart B and 29 CFR 501.8).</P> <P>(d) <E T="03">Effect of regulations</E>. The amendments to the INA made by Title III of the IRCA apply to petitions and applications filed on and after June 1, 1987. Accordingly, the enforcement functions carried out by the WHD under the INA and these regulations apply to the employment of any H-2A worker and any other U.S. workers hired by H-2A employers in corresponding employment as the result of any application filed with the Department on and after June 1, 1987.</P> </SECTION> <SECTION> <SECTNO>§ 502.2</SECTNO> <SUBJECT>Coordination of intake between DOL agencies.</SUBJECT> <P>Complaints received by ETA or any State Workforce Agency (SWA) regarding contractual H-2A labor standards between the employer and the employee will be immediately forwarded to the appropriate WHD office for appropriate action under these regulations.</P> </SECTION> <SECTION> <SECTNO>§ 502.3</SECTNO> <SUBJECT>Discrimination prohibited.</SUBJECT> <P>(a) No person shall intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any person who has:</P> <P>(1) Filed a complaint under or related to sec. 218 of the INA or these regulations;</P> <P>(2) Instituted or caused to be instituted any proceedings related to sec. 218 of the INA or these regulations;</P> <P>(3) Testified or is about to testify in any proceeding under or related to sec. 218 of the INA or these regulations;</P> <P>(4) Exercised or asserted on behalf of himself or others any right or protection afforded by sec. 218 of the INA or these regulations; or</P> <P>(5) Consulted with an employee of a legal assistance program or an attorney on matters related to sec. 218 of the INA, or to this subpart or any other Department regulation promulgated pursuant to sec. 218 of the INA.</P> <P>(b) Allegations of discrimination against any person under paragraph (a) of this section will be investigated by the WHD. Where the WHD has determined through investigation that such allegations have been substantiated, appropriate remedies may be sought. The WHD may assess civil money penalties, seek injunctive relief, and/or seek additional remedies necessary to make the employee whole as a result of the discrimination, as appropriate, and may recommend to ETA debarment of any such violator from future labor certification. Complaints alleging discrimination against U.S. workers and immigrants based on citizenship or immigration status may also be forwarded by the WHD to the Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Employment Practices.</P> </SECTION> <SECTION> <SECTNO>§ 502.4</SECTNO> <SUBJECT>Waiver of rights prohibited.</SUBJECT> <P>No person shall seek to have an H-2A worker, or other U.S. worker hired in corresponding employment by an H-2A employer, waive any rights conferred under sec. 218 of the INA, the regulations at 20 CFR part 655, Subpart B, or under these regulations. Any agreement by an employee purporting to waive or modify any rights inuring to said person under the INA or these regulations shall be void as contrary to public policy, except that a waiver or modification of rights or obligations hereunder in favor of the Secretary shall be valid for purposes of enforcement of the provisions of the INA or these regulations. This does not prevent agreements to settle private litigation.</P> </SECTION> <SECTION> <SECTNO>§ 502.5</SECTNO> <SUBJECT>Investigation authority of Secretary.</SUBJECT> <P>(a) <E T="03">General</E>. The Secretary, either pursuant to a complaint or otherwise, shall, as may be appropriate, investigate and, in connection therewith, <PRTPAGE P="71"/>enter and inspect such places (including housing) and such vehicles, and such records (and make transcriptions thereof), question such persons and gather such information as deemed necessary by the Secretary to determine compliance with contractual obligations under sec. 218 of the INA or these regulations.</P> <P>(b) <E T="03">Failure to cooperate with an investigation</E>. Where any employer (or employer's agent or attorney) using the services of an H-2A worker does not cooperate with an investigation concerning the employment of H-2A workers or U.S. workers hired in corresponding employment, the WHD shall report such occurrence to ETA and may recommend that ETA revoke the existing certification that is the basis for the employment of the H-2A workers giving rise to the investigation, and the WHD may recommend to ETA the debarment of the employer from future certification for up to 3 years. In addition, the WHD may take such action as may be appropriate, including the seeking of an injunction and/or assessing civil money penalties, against any person who has failed to permit the WHD to make an investigation.</P> <P>(c) <E T="03">Confidential investigation</E>. The Secretary shall conduct investigations in a manner that protects the confidentiality of any complainant or other person who provides information to the Secretary in good faith.</P> <P>(d) <E T="03">Report of violations</E>. Any person may report a violation of the work contract obligations of sec. 218 of the INA or these regulations to the Secretary by advising any local office of the SWA, ETA, WHD, or any other authorized representative of the Secretary. The office or person receiving such a report shall refer it to the appropriate office of DOL, WHD for the geographic area in which the reported violation is alleged to have occurred.</P> </SECTION> <SECTION> <SECTNO>§ 502.6</SECTNO> <SUBJECT>Cooperation with DOL officials.</SUBJECT> <P>All persons must cooperate with any official of the DOL assigned to perform an investigation, inspection, or law enforcement function pursuant to the INA and these regulations during the performance of such duties. The WHD will take such action as it deems appropriate, including seeking an injunction to bar any failure to cooperate with an investigation and/or assessing a civil money penalty therefore. In addition, the WHD will report the matter to ETA, and the WHD may recommend to ETA the debarment of the employer from future certification and/or recommend that the person's existing labor certification be revoked. In addition, Federal statutes prohibiting persons from interfering with a Federal officer in the course of official duties are found at 18 U.S.C. 111 and 18 U.S.C. 1114.</P> </SECTION> <SECTION> <SECTNO>§ 502.7</SECTNO> <SUBJECT>Accuracy of information, statements, data.</SUBJECT> <P>Information, statements and data submitted in compliance with provisions of the Act or these regulations are subject to 18 U.S.C. 1001, which provides, with regard to statements or entries generally, that whoever, in any matter within the jurisdiction of any department or agency of the U.S. knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both.</P> </SECTION> <SECTION> <SECTNO>§ 502.8</SECTNO> <SUBJECT>Surety bond.</SUBJECT> <P>(a) H-2ALCs shall obtain a surety bond to assure compliance with the provisions of this part and 20 CFR part 655, subpart B for each labor certification being sought. The H-2ALC shall attest on the application for labor certification that such a bond meeting all the requirements of this section has been obtained and shall provide on the labor certification application form information that fully identifies the surety, including the name, address and phone number of the surety, and which identifies the bond by number or other identifying designation.</P> <P>(b) The bond shall be payable to the Administrator, Wage and Hour Division, United States Department of Labor. It shall obligate the surety to pay any sums to the Administrator, WHD, for wages and benefits owed to <PRTPAGE P="72"/>H-2A and U.S. workers, based on a final decision finding a violation or violations of this part or 20 CFR part 655, subpart B relating to the labor certification the bond is intended to cover. The aggregate liability of the surety shall not exceed the face amount of the bond. The bond shall be written to cover liability incurred during the term of the period listed in the application for labor certification made by the H-2ALC, and shall be amended to cover any extensions of the labor certification requested by the H-2ALC. Surety bonds may not be canceled or terminated unless 30 days' notice is provided by the surety to the Administrator, WHD.</P> <P>(c) The bond shall be in the amount of $5,000 for a labor certification for which a H-2ALC will employ fewer than 25 employees, $10,000 for a labor certification for which a H-2ALC will employ 25 to 49 employees, and $20,000 for a labor certification for which a H-2ALC will employ 50 or more employees. The amount of the bond may be increased by the Administrator, WHD after notice and an opportunity for hearing when it is shown based on objective criteria that the amount of the bond is insufficient to meet potential liabilities.</P> </SECTION> <SECTION> <SECTNO>§ 502.10</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) Definitions of terms used in this part. For the purpose of this part:</P> <P> <E T="03">Administrative Law Judge (ALJ)</E> means a person within the Department's Office of Administrative Law Judges appointed pursuant to 5 U.S.C. 3105, or a panel of such persons designated by the Chief Administrative Law Judge from the Board of Alien Labor Certification Appeals (BALCA) established by part 656 of this chapter, which will hear and decide appeals as set forth at 20 CFR 655.115.</P> <P> <E T="03">Administrator, WHD</E> means the Administrator of the Wage and Hour Division (WHD), ESA and such authorized representatives as may be designated to perform any of the functions of the Administrator, WHD under this part.</P> <P> <E T="03">Adverse effect wage rate (AEWR)</E> means the minimum wage rate that the Administrator of the Office of Foreign Labor Certification (OFLC) has determined must be offered and paid to every H-2A worker employed under the DOL-approved <E T="03">Application for Temporary Employment Certification</E> in a particular occupation and/or area, as well as to U.S. workers hired by employers into corresponding employment during the H-2A recruitment period, to ensure that the wages of similarly employed U.S. workers will not be adversely affected.</P> <P> <E T="03">Agent</E> means a legal entity or person, such as an association of agricultural employers, or an attorney for an association, that—</P> <P>(1) Is authorized to act on behalf of the employer for temporary agricultural labor certification purposes;</P> <P>(2) Is not itself an employer, or a joint employer, as defined in this section, with respect to a specific application; and</P> <P>(3) Is not under suspension, debarment, expulsion, or disbarment from practice before any court or the Department, the Board of Immigration Appeals, the immigration judges, or DHS under 8 CFR 292.3, 1003.101.</P> <P> <E T="03">Agricultural association</E> means any nonprofit or cooperative association of farmers, growers, or ranchers (including but not limited to processing establishments, canneries, gins, packing sheds, nurseries, or other fixed-site agricultural employers), incorporated or qualified under applicable State law, that recruits, solicits, hires, employs, furnishes, houses or transports any worker that is subject to sec. 218 of the INA. An agricultural association may act as the agent of an employer for purposes of filing an H-2A <E T="03">Application for Temporary Employment Certification</E>, and may also act as the sole or joint employer of H-2A workers.</P> <P> <E T="03">Application for Temporary Employment Certification</E> means the Office of Management and Budget (OMB)-approved form submitted by an employer to secure a temporary agricultural labor certification determination from DOL. A complete submission of the <E T="03">Application for Temporary Employment Certification</E> includes the form and the initial recruitment report.</P> <P> <E T="03">Area of intended employment</E> means the geographic area within normal commuting distance of the place (worksite address) of the job opportunity for which the certification is <PRTPAGE P="73"/>sought. There is no rigid measure of distance which constitutes a normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., average commuting times, barriers to reaching the worksite, quality of the regional transportation network, etc.). If the place of intended employment is within a Metropolitan Statistical Area (MSA), including a multistate MSA, any place within the MSA is deemed to be within normal commuting distance of the place of intended employment. The borders of MSAs are not controlling in the identification of the normal commuting area; a location outside of an MSA may be within normal commuting distance of a location that is inside (e.g., near the border of) the MSA.</P> <P> <E T="03">Department of Homeland Security (DHS)</E> means the Federal agency having control over certain immigration functions that, through its sub-agency, <E T="03">United States Citizenship and Immigration Services (USCIS)</E>, makes the determination under the INA on whether to grant visa petitions filed by employers seeking H-2A workers to perform temporary agricultural work in the U.S.</P> <P> <E T="03">DOL or Department</E> means the United States Department of Labor.</P> <P> <E T="03">Eligible worker</E> means an individual who is not an unauthorized alien (as defined in sec. 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3)) with respect to the employment in which the worker is engaging.</P> <P> <E T="03">Employee</E> means employee as defined under the general common law of agency. Some of the factors relevant to the determination of employee status include: the hiring party's right to control the manner and means by which the work is accomplished; the skill required to perform the work; the source of the instrumentalities and tools for accomplishing the work; the location of the work; the hiring party's discretion over when and how long to work; and whether the work is part of the regular business of the hiring party. Other applicable factors may be considered and no one factor is dispositive.</P> <P> <E T="03">Employer</E> means a person, firm, corporation or other association or organization that:</P> <P>(1) Has a place of business (physical location) in the U.S. and a means by which it may be contacted for employment;</P> <P>(2) Has an employer relationship with respect to H-2A employees or related U.S. workers under this part; and</P> <P>(3) Possesses, for purposes of filing an <E T="03">Application for Temporary Employment Certification</E>, a valid Federal Employer Identification Number (FEIN).</P> <P> <E T="03">Employment Service (ES)</E> refers to the system of Federal and state entities responsible for administration of the labor certification process for temporary and seasonal agricultural employment of nonimmigrant foreign workers. This includes the SWAs and OFLC, including the National Processing Centers (NPCs).</P> <P> <E T="03">Employment Standards Administration (ESA)</E> means the agency within DOL that includes the WHD, and which is charged with carrying out certain investigative and enforcement functions of the Secretary under the INA.</P> <P> <E T="03">Employment and Training Administration (ETA)</E> means the agency within the DOL that includes OFLC.</P> <P> <E T="03">Federal holiday</E> means a legal public holiday as defined at 5 U.S.C. 6103.</P> <P> <E T="03">Fixed-site employer</E> means any person engaged in agriculture who meets the definition of an employer as those terms are defined in this part who owns or operates a farm, ranch, processing establishment, cannery, gin, packing shed, nursery, or other similar fixed-site location where agricultural activities are performed and who recruits, solicits, hires, employs, houses, or transports any worker subject to sec. 218 of the INA or these regulations as incident to or in conjunction with the owner's or operator's own agricultural operation. For purposes of this part, <E T="03">person</E> includes any individual, partnership, association, corporation, cooperative, joint stock company, trust, or other organization with legal rights and duties.</P> <P> <E T="03">H-2A Labor Contractor (H-2ALC)</E> means any person who meets the definition of employer in this section and is not a fixed-site employer, an agricultural association, or an employee of a fixed-site employer or agricultural association, as those terms are used in this part, who recruits, solicits, hires, <PRTPAGE P="74"/>employs, furnishes, houses, or transports any worker subject to sec. 218 of the INA or these regulations.</P> <P> <E T="03">H-2A worker</E> means any temporary foreign worker who is lawfully present in the U.S. to perform agricultural labor or services of a temporary or seasonal nature pursuant to sec. 101(a)(15)(H)(ii)(a) of the INA, as amended.</P> <P> <E T="03">INA/Act</E> means the Immigration and Nationality Act, as amended, 8 U.S.C. 1101 <E T="03">et seq.</E> </P> <P> <E T="03">Job offer</E> means the offer made by an employer or potential employer of H-2A workers to eligible workers describing all the material terms and conditions of employment, including those relating to wages, working conditions, and other benefits.</P> <P> <E T="03">Job opportunity</E> means a job opening for temporary, full-time employment at a place in the U.S. to which a U.S. worker can be referred.</P> <P> <E T="03">Joint employment</E> means that where two or more employers each have sufficient definitional indicia of employment to be considered the employer of an employee, those employers will be considered to jointly employ that employee. Each employer in a joint employment relationship to an employee is considered a “joint employer” of that employee.</P> <P> <E T="03">Office of Foreign Labor Certification (OFLC)</E> means the organizational component of the ETA that provides national leadership and policy guidance and develops regulations and procedures to carry out the responsibilities of the Secretary under the INA concerning the admission of foreign workers to the U.S. to perform work described in sec. 101(a)(15)(H)(ii)(a) of the INA, as amended.</P> <P> <E T="03">Positive recruitment</E> means the active participation of an employer or its authorized hiring agent in recruiting and interviewing qualified and eligible individuals in the area where the employer's job opportunity is located and any other State designated by the Secretary as an area of traditional or expected labor supply with respect to the area where the employer's job opportunity is located, in an effort to fill specific job openings with U.S. workers.</P> <P> <E T="03">Prevailing</E> means with respect to practices engaged in by employers and benefits other than wages provided by employers, that:</P> <P>(1) Fifty percent or more of employers in an area and for an occupation engage in the practice or offer the benefit; but only if</P> <P>(2) This 50 percent or more of employers also employs in aggregate 50 percent or more of U.S. workers in the occupation and area (including H-2A and non-H-2A employers for purposes of determinations concerning the provision of family housing, frequency of wage payments, and workers supplying their own bedding, but non-H-2A employers only for determinations concerning the provision of advance transportation and the utilization of H-2ALCs).</P> <P> <E T="03">Prevailing hourly wage</E> means the hourly wage determined by the SWA to be prevailing in the area in accordance with State-based wage surveys.</P> <P> <E T="03">Prevailing piece rate</E> means that amount that is typically paid to an agricultural worker per piece (which includes, but is not limited to, a load, bin, pallet, bag, bushel, etc.) to be determined by the SWA according to a methodology published by the Department. As is currently the case, the unit of production will be required to be clearly described; e.g., a field box of oranges (1<FR>1/2</FR> bushels), a bushel of potatoes, and Eastern apple box (1<FR>1/2</FR> metric bushels), a flat of strawberries (twelve quarts), etc.</P> <P> <E T="03">Representative</E> means a person or entity employed by, or duly authorized to act on behalf of, the employer with respect to activities entered into for, and/or attestations made with respect to, the <E T="03">Application for Temporary Employment Certification</E>.</P> <P> <E T="03">Secretary</E> means the Secretary of the United States Department of Labor or the Secretary's designee.</P> <P> <E T="03">State Workforce Agency (SWA)</E> means the State government agency that receives funds pursuant to the Wagner-Peyser Act to administer the public labor exchange delivered through the State's One-Stop delivery system in accordance with the Wagner-Peyser Act, 29 U.S.C. 49, <E T="03">et seq.</E> Separately, SWAs receive ETA grants, administered by OFLC, to assist them in performing certain activities related to foreign <PRTPAGE P="75"/>labor certification, including conducting housing inspections.</P> <P> <E T="03">Successor in interest</E> means that, in determining whether an employer is a successor in interest, the factors used under Title VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance Act will be considered. When considering whether an employer is a successor for purposes of this part, the primary consideration will be the personal involvement of the firm's ownership, management, supervisors, and others associated with the firm in the violations resulting in a debarment recommendation. Normally, wholly new management or ownership of the same business operation, one in which the former management or owner does not retain a direct or indirect interest, will not be deemed to be a successor in interest for purposes of debarment. A determination of whether or not a successor in interest exists is based on the entire circumstances viewed in their totality. The factors to be considered include:</P> <P>(1) Substantial continuity of the same business operations;</P> <P>(2) Use of the same facilities;</P> <P>(3) Continuity of the work force;</P> <P>(4) Similarity of jobs and working conditions;</P> <P>(5) Similarity of supervisory personnel;</P> <P>(6) Similarity in machinery, equipment, and production methods;</P> <P>(7) Similarity of products and services; and</P> <P>(8) The ability of the predecessor to provide relief.</P> <P> <E T="03">Temporary agricultural labor certification</E> means the certification made by the Secretary with respect to an employer seeking to file with DHS a visa petition to employ one or more foreign nationals as an H-2A worker, pursuant to secs. 101(a)(15)(H)(ii)(a), 214(a) and (c), and 218 of the INA that:</P> <P>(1) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the agricultural labor or services involved in the petition, and</P> <P>(2) The employment of the foreign worker in such agricultural labor or services will not adversely affect the wages and working conditions of workers in the U.S. similarly employed as stated at 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) and (c), and 1188.</P> <P> <E T="03">United States (U.S.),</E> when used in a geographic sense, means the continental United States, Alaska, Hawaii, the Commonwealth of Puerto Rico, and the territories of Guam, the Virgin Islands, and, as of the transition program effective date, as defined in the Consolidated Natural Resources Act of 2008, Public Law 110-229, Title VII, the Commonwealth of the Northern Mariana Islands.</P> <P> <E T="03">U.S. worker</E> means a worker who is:</P> <P>(1) A citizen or national of the U.S., or;</P> <P>(2) An alien who is lawfully admitted for permanent residence in the U.S., is admitted as a refugee under sec. 207 of the INA, is granted asylum under sec. 208 of the INA, or is an immigrant otherwise authorized (by the INA or by DHS) to be employed in the U.S.</P> <P> <E T="03">Wages</E> means all forms of cash remuneration to a worker by an employer in payment for personal services.</P> <P> <E T="03">Work contract</E> means all the material terms and conditions of employment relating to wages, hours, working conditions, and other benefits, required by the applicable regulations in subpart B of 20 CFR part 655, <E T="03">Labor Certification for Temporary Agricultural Employment of H-2A Aliens in the U.S. (H-2A Workers)</E>, or these regulations, including those terms and conditions attested to by the H-2A employer, which contract between the employer and the worker may be in the form of a separate written document. In the absence of a separate written work contract incorporating the required terms and conditions of employment, agreed to by both the employer and the worker, the work contract at a minimum shall be the terms of the job order, as provided in 20 CFR part 653, subpart F, and covered provisions of the work contract shall be enforced in accordance with these regulations.</P> <P>(b) <E T="03">Definition of agricultural labor or services of a temporary or seasonal nature.</E> For the purposes of this part, <E T="03">agricultural labor or services of a temporary or seasonal nature</E> means the following:</P> <P>(1) <E T="03">Agricultural labor or services,</E> pursuant to sec. 101(a)(15)(H)(ii)(a) of the INA <PRTPAGE P="76"/>(8 U.S.C. 1101(a)(15)(H)(ii)(a)), is defined as:</P> <P>(i) <E T="03">Agricultural labor</E> as defined and applied in sec. 3121(g) of the Internal Revenue Code of 1954 at 26 U.S.C. 3121(g);</P> <P>(ii) <E T="03">Agriculture</E> as defined and applied in sec. 3(f) of the Fair Labor Standards Act of 1938 (FLSA) at 29 U.S.C. 203(f) (Work performed by H-2A workers, or workers in corresponding employment, that is not defined as agriculture in sec. 3(f) is subject to the provisions of the FLSA as provided therein, including the overtime provisions in sec. 7(a) at 29 U.S.C. 207(a));</P> <P>(iii) The pressing of apples for cider on a farm;</P> <P>(iv) Logging employment; or</P> <P>(v) Handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity while in the employ of the operator of a farm where no H-2B workers are employed to perform the same work at the same establishment; or</P> <P>(vi) Other work typically performed on a farm that is not specifically listed on the <E T="03">Application for Temporary Employment Certification</E> and is minor (i.e., less than 20 percent of the total time worked on the job duties and activities that are listed on the <E T="03">Application for Temporary Employment Certification</E>) and incidental to the agricultural labor or services for which the H-2A worker was sought.</P> <P>(2) An occupation included in either of the statutory definitions cited in paragraphs (b)(1)(i) and (ii) of this section is <E T="03">agricultural labor or services,</E> notwithstanding the exclusion of that occupation from the other statutory definition.</P> <P>(i) <E T="03">Agricultural labor</E> for purposes of paragraph (b)(1)(i) of this section means all services performed:</P> <P>(A) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and furbearing animals and wildlife;</P> <P>(B) In the employ of the owner or tenant or other operator of a farm, in connection with the operation or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm;</P> <P>(C) In connection with the production or harvesting of any commodity defined as an agricultural commodity in sec. 15(g) of the Agricultural Marketing Act, as amended at 12 U.S.C. 1141j, or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes;</P> <P>(D)(<E T="03">1</E>) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity, but only if such operator produced more than one-half of the commodity with respect to which such service is performed;</P> <P>(<E T="03">2</E>) In the employ of a group of operators of farms (other than a cooperative organization) in the performance of service described in paragraph (b)(2)(i)(A) of this section, but only if such operators produced all of the commodity with respect to which such service is performed. For purposes of this paragraph, any unincorporated group of operators will be deemed a cooperative organization if the number of operators comprising such group is more than 20 at any time during the calendar quarter in which such service is performed;</P> <P>(<E T="03">3</E>) The provisions of paragraphs (b)(2)(i)(D)(<E T="03">1</E>) and (<E T="03">2</E>) of this section do not apply to services performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption; or</P> <P>(<E T="03">4</E>) On a farm operated for profit if such service is not in the course of the <PRTPAGE P="77"/>employer's trade or business and is not domestic service in a private home of the employer.</P> <P>(E) For the purposes of this section, the term <E T="03">farm</E> includes stock, dairy, poultry, fruit, fur-bearing animals, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards. See sec. 3121(g) of the Internal Revenue Code of 1986 (26 U.S.C. 3121(g)).</P> <P>(ii) <E T="03">Agriculture.</E> For purposes of paragraph (b)(1)(ii) of this section <E T="03">agriculture</E> means farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities as defined as agricultural commodities in 12 U.S.C. 1141j(g)), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. <E T="03">See sec.</E> 29 U.S.C. 203(f), as amended.</P> <P>(iii) <E T="03">Agricultural commodity.</E> For purposes of paragraph (b)(1)(ii) of this section, <E T="03">agricultural commodity</E> includes, in addition to other agricultural commodities, crude gum (oleoresin) from a living tree, and gum spirits of turpentine and gum rosin as processed by the original producer of the crude gum (oleoresin) from which derived. <E T="03">Gum spirits of turpentine</E> means spirits of turpentine made from gum (oleoresin) from a living tree and <E T="03">gum rosin</E> means rosin remaining after the distillation of gum spirits of turpentine. <E T="03">See</E> 12 U.S.C. 1141j(g) (sec. 15(g) of the Agricultural Marketing Act, as amended), and 7 U.S.C. 92.</P> <P>(3) <E T="03">Of a temporary or seasonal nature—</E> (i) <E T="03">On a seasonal or other temporary basis.</E> For the purposes of this part, <E T="03">of a temporary or seasonal nature</E> means <E T="03">on a seasonal or other temporary basis,</E> as defined in the WHD's regulation at 29 CFR 500.20 under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).</P> <P>(ii) <E T="03">MSPA definition.</E> The definition of <E T="03">on a seasonal or other temporary basis</E> found in MSPA is summarized as follows:</P> <P>(A) Labor is performed on a seasonal basis where, ordinarily, the employment pertains to or is of the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may not be continuous or carried on throughout the year. A worker who moves from one seasonal activity to another, while employed in agriculture or performing agricultural labor, is employed on a seasonal basis even though the worker may continue to be employed during a major portion of the year.</P> <P>(B) A worker is employed on <E T="03">other temporary basis</E> where the worker is employed for a limited time only or the worker's performance is contemplated for a particular piece of work, usually of short duration. Generally, employment which is contemplated to continue indefinitely is not temporary.</P> <P>(C) <E T="03">On a seasonal or other temporary basis</E> does not include</P> <P>(<E T="03">1</E>) The employment of any foreman or other supervisory employee who is employed by a specific agricultural employer or agricultural association essentially on a year round basis; or</P> <P>(<E T="03">2</E>) The employment of any worker who is living at his or her permanent place of residence, when that worker is employed by a specific agricultural employer or agricultural association on essentially a year round basis to perform a variety of tasks for his or her employer and is not primarily employed to do field work.</P> <P>(iii) <E T="03">Temporary.</E> For the purposes of this part, the definition of <E T="03">temporary</E> in paragraph (b)(3) of this section refers to any job opportunity covered by this part where the employer needs a worker for a position for a limited period of time, including, but not limited, to a peakload need, which is generally less than 1 year, unless the original temporary agricultural labor certification is extended pursuant to 20 CFR 655.110.</P> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="78"/> <HD SOURCE="HED">Subpart B—Enforcement of Work Contracts</HD> <SECTION> <SECTNO>§ 502.15</SECTNO> <SUBJECT>Enforcement.</SUBJECT> <P>The investigation, inspections and law enforcement functions to carry out the provisions of sec. 218 of the INA, as provided in these regulations for enforcement by the WHD, pertain to the employment of any H-2A worker and any other U.S. worker hired in corresponding employment by an H-2A employer. Such enforcement includes work contract provisions as defined in § 501.10(a). The work contract also includes those employment benefits which are required to be stated in the job offer, as prescribed in 20 CFR 655.104.</P> </SECTION> <SECTION> <SECTNO>§ 502.16</SECTNO> <SUBJECT>Sanctions and remedies—General.</SUBJECT> <P>Whenever the Secretary believes that the H-2A provisions of the INA or these regulations have been violated such action shall be taken and such proceedings instituted as deemed appropriate, including (but not limited to) the following:</P> <P>(a) Institute appropriate administrative proceedings, including: The recovery of unpaid wages, including wages owed to U.S. workers as a result of a layoff or displacement prohibited by these rules (either directly from the employer, a successor in interest, or in the case of an H-2ALC also by claim against any surety who issued a bond to the H-2ALC); the enforcement of covered provisions of the work contract as set forth in 29 CFR 501.10(a); the assessment of a civil money penalty; reinstatement; or the recommendation of debarment for up to 3 years.</P> <P>(b) Petition any appropriate District Court of the U.S. for temporary or permanent injunctive relief, including the withholding of unpaid wages and/or reinstatement, to restrain violation of the H-2A provisions of the INA, 20 CFR part 655, Subpart B, or these regulations by any person.</P> <P>(c) Petition any appropriate District Court of the U.S. for specific performance of covered contractual obligations.</P> </SECTION> <SECTION> <SECTNO>§ 502.17</SECTNO> <SUBJECT>Concurrent actions.</SUBJECT> <P>The taking of any one of the actions referred to above shall not be a bar to the concurrent taking of any other action authorized by the H-2A provisions of the Act and these regulations, or the regulations of 20 CFR part 655.</P> </SECTION> <SECTION> <SECTNO>§ 502.18</SECTNO> <SUBJECT>Representation of the Secretary.</SUBJECT> <P>(a) Except as provided in 28 U.S.C. 518(a) relating to litigation before the Supreme Court, the Solicitor of Labor may appear for and represent the Secretary in any civil litigation brought under the Act.</P> <P>(b) The Solicitor of Labor, through authorized representatives, shall represent the Administrator, WHD and the Secretary in all administrative hearings under the H-2A provisions of the Act and these regulations.</P> </SECTION> <SECTION> <SECTNO>§ 502.19</SECTNO> <SUBJECT>Civil money penalty assessment.</SUBJECT> <P>(a) A civil money penalty may be assessed by the Administrator, WHD for each violation of the work contract as set forth in § 501.10(a) of these regulations.</P> <P>(b) In determining the amount of penalty to be assessed for any violation of the work contract as provided in the H-2A provisions of the Act or these regulations the Administrator, WHD shall consider the type of violation committed and other relevant factors. The matters which may be considered include, but are not limited to, the following:</P> <P>(1) Previous history of violation or violations of the H-2A provisions of the Act and these regulations;</P> <P>(2) The number of H-2A employees, corresponding U.S. employees or those U.S. workers individually rejected for employment affected by the violation or violations;</P> <P>(3) The gravity of the violation or violations;</P> <P>(4) Efforts made in good faith to comply with the H-2A provisions of the Act and these regulations;</P> <P>(5) Explanation of person charged with the violation or violations;</P> <P>(6) Commitment to future compliance, taking into account the public health, interest or safety, and whether <PRTPAGE P="79"/>the person has previously violated the H-2A provisions of the Act;</P> <P>(7) The extent to which the violator achieved a financial gain due to the violation, or the potential financial loss or potential injury to the workers.</P> <P>(c) A civil money penalty for violation of the work contract will not exceed $1,000 for each violation committed (with each failure to pay a worker properly or to honor the terms or conditions of a worker's employment that is required by sec. 218 of the INA, 20 CFR 655, subpart B, or these regulations constituting a separate violation), with the following exceptions:</P> <P>(1) For a willful failure to meet a covered condition of the work contract, or for willful discrimination, the civil money penalty shall not exceed $5,000 for each such violation committed (with each willful failure to honor the terms or conditions of a worker's employment that are required by sec. 218 of the INA, 20 CFR 655, subpart B, or these regulations constituting a separate violation);</P> <P>(2) For a violation of a housing or transportation safety and health provision of the work contract that proximately causes the death or serious injury of any worker, the civil money penalty shall not exceed $25,000 per worker, unless the violation is a repeat or willful violation, in which case the penalty shall not exceed $50,000 per worker, or unless the employer failed, after notification, to cure the specific violation, in which case the penalty shall not exceed $100,000 per worker.</P> <P>(3) For purposes of paragraph (c)(2) of this section, the term <E T="03">serious injury</E> means:</P> <P>(i) Permanent loss or substantial impairment of one of the senses (sight, hearing, taste, smell, tactile sensation);</P> <P>(ii) Permanent loss or substantial impairment of the function of a bodily member, organ, or mental faculty, including the loss of all or part of an arm, leg, foot, hand or other body part; or</P> <P>(iii) Permanent paralysis or substantial impairment that causes loss of movement or mobility of an arm, leg, foot, hand or other body part.</P> <P>(d) A civil money penalty for failure to cooperate with a WHD investigation shall not exceed $5,000 per investigation;</P> <P>(e) For a willful layoff or displacement of any similarly employed U.S. worker in the occupation that is the subject of the <E T="03">Application for Temporary Employment Certification</E> in the area of intended employment within 60 days of the date of need other than for a lawful, job-related reason, except that such layoff shall be permitted where all H-2A workers were laid off first, the civil penalty shall not exceed $10,000 per violation per worker.</P> </SECTION> <SECTION> <SECTNO>§ 502.20</SECTNO> <SUBJECT>Debarment and revocation.</SUBJECT> <P>(a) The WHD shall recommend to the Administrator, OFLC the debarment of any employer and any successor in interest to that employer (or the employer's attorney or agent if they are a responsible party) if the WHD finds that the employer substantially violated a material term or condition of its temporary labor certification for the employment of domestic or nonimmigrant workers.</P> <P>(b) For purposes of this section, a substantial violation includes:</P> <P>(1) A pattern or practice of acts of commission or omission on the part of the employer or the employer's agent which:</P> <P>(i) Are significantly injurious to the wages, benefits required to be offered under the H-2A program, or working conditions of a significant number of the employer's U.S. or H-2A workers;</P> <P>(ii) Reflect a significant failure to offer employment to all qualified domestic workers who applied for the job opportunity for which certification was being sought, except for lawful job-related reasons;</P> <P>(iii) Reflect a willful failure to comply with the employer's obligations to recruit U.S. workers as set forth in this subpart; or</P> <P>(iv) Reflect the employment of an H-2A worker outside the area of intended employment, or in an activity/activities, not listed in the job order (other than an activity minor and incidental to the activity/activities listed in the job order), or after the period of employment specified in the job order and any approved extension;<PRTPAGE P="80"/> </P> <P>(2) A significant failure to cooperate with a DOL investigation or with a DOL official performing an investigation, inspection, or law enforcement function under sec. 218 of the INA, 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA enforcement of contractual obligations); or</P> <P>(3) A significant failure to comply with one or more sanctions or remedies imposed by the ESA for violation(s) of obligations found by that agency (if applicable), or with one or more decisions or orders of the Secretary or a court order secured by the Secretary under sec. 218 of the INA, 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA enforcement of contractual obligations); or</P> <P>(4) A single heinous act showing such flagrant disregard for the law that future compliance with program requirements cannot reasonably be expected.</P> <P>(c) Procedures for Debarment Recommendation. The WHD will send to the employer a <E T="03">Notice of Recommended Debarment.</E> The <E T="03">Notice of Recommended Debarment</E> must be in writing, must state the reason for the debarment recommendation, including a detailed explanation of the grounds for and the duration of the recommended debarment. The debarment recommendation will be forwarded to the Administrator, OFLC. The <E T="03">Notice of Recommended Debarment</E> shall be issued no later than 2 years after the occurrence of the violation.</P> <P>(d) The WHD may recommend to the Administrator, OFLC the revocation of a temporary agricultural labor certification if the WHD finds that the employer:</P> <P>(1) Willfully violated a material term or condition of the approved temporary agricultural labor certification, work contract, or this part, unless otherwise provided under paragraphs (d)(2) through (4) of this section.</P> <P>(2) Failed, after notification, to cure a substantial violation of the applicable housing standards set out in 20 CFR 655.104(d);</P> <P>(3) Failed to cooperate with a DOL investigation or with a DOL official performing an investigation, inspection, or law enforcement function under sec. 218 of the INA, 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA enforcement of contractual obligations); or</P> <P>(4) Failed to comply with one or more sanctions or remedies imposed by the ESA for violation(s) of obligations found by that agency (if applicable), or with one or more decisions or orders of the Secretary or a court order Secured by the Secretary under sec. 218 of the INA, 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA enforcement of contractual obligations).</P> <P>(e) In considering a recommendation made by the WHD to debar an employer or to revoke a temporary agricultural labor certification, the Administrator, OFLC shall treat final agency determinations that the employer has committed a violation as res judicata and shall not reconsider those determinations.</P> </SECTION> <SECTION> <SECTNO>§ 502.21</SECTNO> <SUBJECT>Failure to cooperate with investigations.</SUBJECT> <P>No person shall refuse to cooperate with any employee of the Secretary who is exercising or attempting to exercise this investigative or enforcement authority. As stated in §§ 501.6 and 501.19 of this part, a civil money penalty may be assessed for each failure to cooperate with an investigation, and other appropriate relief may be sought. In addition, the WHD shall report each such occurrence to ETA, and ETA may debar the employer from future certification. The WHD may also recommend to ETA that an existing certification be revoked. The taking of any one action shall not bar the taking of any additional action.</P> </SECTION> <SECTION> <SECTNO>§ 502.22</SECTNO> <SUBJECT>Civil money penalties—payment and collection.</SUBJECT> <P>Where the assessment is directed in a final order by the Administrator, WHD, by an ALJ, or by the ARB, the amount of the penalty is due within 30 days and payable to the United States Department of Labor. The person assessed such penalty shall remit promptly the amount thereof as finally determined, to the Administrator, WHD by certified check or by money order, made payable to the order of <E T="03">Wage and Hour Division, United States Department of Labor.</E> The remittance shall be delivered or mailed to the WHD Regional Office for the area in which the violations occurred.</P> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="81"/> <HD SOURCE="HED">Subpart C—Administrative Proceedings</HD> <SECTION> <SECTNO>§ 502.30</SECTNO> <SUBJECT>Applicability of procedures and rules.</SUBJECT> <P>The procedures and rules contained herein prescribe the administrative process that will be applied with respect to a determination to impose an assessment of civil money penalties, and which may be applied to the enforcement of covered provisions of the work contract as set forth in § 501.10(a), including the collection of unpaid wages due as a result of any violation of the H-2A provisions of the Act or of these regulations. Except with respect to the imposition of civil money penalties, the Secretary may, in the Secretary's discretion, seek enforcement action in Federal court without resort to any administrative proceedings.</P> </SECTION> <SUBJGRP> <HD SOURCE="HED">Procedures Relating to Hearing</HD> <SECTION> <SECTNO>§ 502.31</SECTNO> <SUBJECT>Written notice of determination required.</SUBJECT> <P>Whenever the Administrator, WHD decides to assess a civil money penalty or to proceed administratively to enforce covered contractual obligations, including the recovery of unpaid wages, the person against whom such action is taken shall be notified in writing of such determination.</P> </SECTION> <SECTION> <SECTNO>§ 502.32</SECTNO> <SUBJECT>Contents of notice.</SUBJECT> <P>The notice required by § 501.31 shall:</P> <P>(a) Set forth the determination of the Administrator, WHD including the amount of any unpaid wages due or actions necessary to fulfill a covered contractual obligation, the amount of any civil money penalty assessment and the reason or reasons therefore.</P> <P>(b) Set forth the right to request a hearing on such determination.</P> <P>(c) Inform any affected person or persons that in the absence of a timely request for a hearing, the determination of the Administrator, WHD shall become final and unappealable.</P> <P>(d) Set forth the time and method for requesting a hearing, and the procedures relating thereto, as set forth in § 501.33.</P> </SECTION> <SECTION> <SECTNO>§ 502.33</SECTNO> <SUBJECT>Request for hearing.</SUBJECT> <P>(a) Any person desiring review of a determination referred to in § 501.32, including judicial review, shall make a written request for an administrative hearing to the official who issued the determination at the WHD address appearing on the determination notice, no later than 30 days after issuance of the notice referred to in § 501.32.</P> <P>(b) No particular form is prescribed for any request for hearing permitted by this part. However, any such request shall:</P> <P>(1) Be typewritten or legibly written;</P> <P>(2) Specify the issue or issues stated in the notice of determination giving rise to such request;</P> <P>(3) State the specific reason or reasons why the person requesting the hearing believes such determination is in error;</P> <P>(4) Be signed by the person making the request or by an authorized representative of such person; and</P> <P>(5) Include the address at which such person or authorized representative desires to receive further communications relating thereto.</P> <P>(c) The request for such hearing must be received by the official who issued the determination, at the WHD address appearing on the determination notice, within the time set forth in paragraph (a) of this section. For the affected person's protection, if the request is by mail, it should be by certified mail.</P> <P>(d) The determination shall take effect on the start date identified in the determination, unless an administrative appeal is properly filed. The timely filing of an administrative appeal stays the determination pending the outcome of the appeal proceedings.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Rules of Practice</HD> <SECTION> <SECTNO>§ 502.34</SECTNO> <SUBJECT>General.</SUBJECT> <P>Except as specifically provided in these regulations, the <E T="03">Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges</E> established by the Secretary at 29 CFR part 18 shall apply to administrative proceedings described in this part.</P> </SECTION> <SECTION> <PRTPAGE P="82"/> <SECTNO>§ 502.35</SECTNO> <SUBJECT>Commencement of proceeding.</SUBJECT> <P>Each administrative proceeding permitted under the Act and these regulations shall be commenced upon receipt of a timely request for hearing filed in accordance with § 501.33.</P> </SECTION> <SECTION> <SECTNO>§ 502.36</SECTNO> <SUBJECT>Caption of proceeding.</SUBJECT> <P>(a) Each administrative proceeding instituted under the Act and these regulations shall be captioned in the name of the person requesting such hearing, and shall be styled as follows:</P> <HD SOURCE="HD1">In the Matter of __, Respondent.</HD> <P>(b) For the purposes of such administrative proceedings the Administrator, WHD shall be identified as plaintiff and the person requesting such hearing shall be named as respondent.</P> <HD SOURCE="HD1">Referral for Hearing</HD> </SECTION> <SECTION> <SECTNO>§ 502.37</SECTNO> <SUBJECT>Referral to Administrative Law Judge.</SUBJECT> <P>(a) Upon receipt of a timely request for a hearing filed pursuant to and in accordance with § 501.33, the Administrator, WHD, by the Associate Solicitor for the Division of Fair Labor Standards or by the Regional Solicitor for the Region in which the action arose, shall, by <E T="03">Order of Reference,</E> promptly refer a copy of the notice of administrative determination complained of, and the original or a duplicate copy of the request for hearing signed by the person requesting such hearing or by the authorized representative of such person, to the Chief Administrative Law Judge, for a determination in an administrative proceeding as provided herein. The notice of administrative determination and request for hearing shall be filed of record in the Office of the Chief Administrative Law Judge and shall, respectively, be given the effect of a complaint and answer thereto for purposes of the administrative proceeding, subject to any amendment that may be permitted under these regulations or 29 CFR part 18.</P> <P>(b) A copy of the <E T="03">Order of Reference,</E> together with a copy of these regulations, shall be served by counsel for the Administrator, WHD upon the person requesting the hearing, in the manner provided in 29 CFR 18.3.</P> </SECTION> <SECTION> <SECTNO>§ 502.38</SECTNO> <SUBJECT>Notice of docketing.</SUBJECT> <P>Upon receipt of an <E T="03">Order of Reference,</E> the Chief Administrative Law Judge shall appoint an ALJ to hear the case. The ALJ shall promptly notify all interested parties of the docketing of the matter and shall set the time and place of the hearing. The date of the hearing shall be not more than 60 days from the date on which the <E T="03">Order of Reference</E> was filed.</P> </SECTION> <SECTION> <SECTNO>§ 502.39</SECTNO> <SUBJECT>Service upon attorneys for the Department of Labor—number of copies.</SUBJECT> <P>Two copies of all pleadings and other documents required for any administrative proceeding provided herein shall be served on the attorneys for the DOL. One copy shall be served on the Associate Solicitor, Division of Fair Labor Standards, Office of the Solicitor, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, and one copy on the Attorney representing the Department in the proceeding.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures Before Administrative Law Judge</HD> <SECTION> <SECTNO>§ 502.40</SECTNO> <SUBJECT>Consent findings and order.</SUBJECT> <P>(a) <E T="03">General.</E> At any time after the commencement of a proceeding under this part, but prior to the reception of evidence in any such proceeding, a party may move to defer the receipt of any evidence for a reasonable time to permit negotiation of an agreement containing consent findings and an order disposing of the whole or any part of the proceeding. The allowance of such deferment and the duration thereof shall be at the discretion of the ALJ, after consideration of the nature of the proceeding, the requirements of the public interest, the representations of the parties, and the probability of an agreement being reached which will result in a just disposition of the issues involved.</P> <P>(b) <E T="03">Content.</E> Any agreement containing consent findings and an order disposing of a proceeding or any part thereof shall also provide:</P> <P>(1) That the order shall have the same force and effect as an order made after full hearing;<PRTPAGE P="83"/> </P> <P>(2) That the entire record on which any order may be based shall consist solely of the notice of administrative determination (or amended notice, if one is filed), and the agreement;</P> <P>(3) A waiver of any further procedural steps before the ALJ; and</P> <P>(4) A waiver of any right to challenge or contest the validity of the findings and order entered into in accordance with the agreement.</P> <P>(c) <E T="03">Submission.</E> On or before the expiration of the time granted for negotiations, the parties or their authorized representatives or their counsel may:</P> <P>(1) Submit the proposed agreement for consideration by the ALJ; or</P> <P>(2) Inform the ALJ that agreement cannot be reached.</P> <P>(d) <E T="03">Disposition.</E> In the event an agreement containing consent findings and an order is submitted within the time allowed therefor, the ALJ, within 30 days thereafter, shall, if satisfied with its form and substance, accept such agreement by issuing a decision based upon the agreed findings.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Post-Hearing Procedures</HD> <SECTION> <SECTNO>§ 502.41</SECTNO> <SUBJECT>Decision and order of Administrative Law Judge.</SUBJECT> <P>(a) The ALJ shall prepare, within 60 days after completion of the hearing and closing of the record, a decision on the issues referred by the Administrator, WHD.</P> <P>(b) The decision of the ALJ shall include a statement of findings and conclusions, with reasons and basis therefor, upon each material issue presented on the record. The decision shall also include an appropriate order which may affirm, deny, reverse, or modify, in whole or in part, the determination of the Administrator, WHD. The reason or reasons for such order shall be stated in the decision.</P> <P>(c) The decision shall be served on all parties and the Administrative Review Board (ARB) in person or by certified mail.</P> <P>(d) The decision concerning civil money penalties and/or back wages when served by the ALJ shall constitute the final agency order unless the ARB, as provided for in § 501.42, determines to review the decision.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Review of Administrative Law Judge's Decision</HD> <SECTION> <SECTNO>§ 502.42</SECTNO> <SUBJECT>Procedures for initiating and undertaking review.</SUBJECT> <P>(a) A respondent, the WHD, or any other party wishing review, including judicial review, of the decision of an ALJ shall, within 30 days of the decision of the ALJ, petition the ARB to review the decision. Copies of the petition shall be served on all parties and on the ALJ. If the ARB does not issue a notice accepting a petition for review of the decision concerning civil money penalties and/or back wages within 30 days after receipt of a timely filing of the petition, or within 30 days of the date of the decision if no petition has been received, the decision of the ALJ shall be deemed the final agency action. If the ARB does not issue a notice accepting a petition for review of the decision concerning the debarment recommendation within 30 days after the receipt of a timely filing of the petition, or if no petition has been received by the ARB within 30 days of the date of the decision, the decision of the ALJ shall be deemed the final agency action. If a petition for review is accepted, the decision of the ALJ shall be inoperative unless and until the ARB issues an order affirming the decision.</P> <P>(b) Whenever the ARB, either on the ARB's own motion or by acceptance of a party's petition, determines to review the decision of an ALJ, a notice of the same shall be served upon the ALJ and upon all parties to the proceeding in person or by certified mail.</P> </SECTION> <SECTION> <SECTNO>§ 502.43</SECTNO> <SUBJECT>Responsibility of the Office of Administrative Law Judges.</SUBJECT> <P>Upon receipt of the ARB's Notice pursuant to § 501.42 of these regulations, the Office of ALJ shall promptly forward a copy of the complete hearing record to the ARB.</P> </SECTION> <SECTION> <SECTNO>§ 502.44</SECTNO> <SUBJECT>Additional information, if required.</SUBJECT> <P>Where the ARB has determined to review such decision and order, the ARB shall notify each party of:</P> <P>(a) The issue or issues raised;</P> <P>(b) The form in which submissions shall be made (i.e., briefs, oral argument, etc.); and<PRTPAGE P="84"/> </P> <P>(c) The time within which such presentation shall be submitted.</P> </SECTION> <SECTION> <SECTNO>§ 502.45</SECTNO> <SUBJECT>Final decision of the Administrative Review Board.</SUBJECT> <P>The ARB's final decision shall be issued within 90 days from the notice granting the petition and served upon all parties and the ALJ, in person or by certified mail.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Record</HD> <SECTION> <SECTNO>§ 502.46</SECTNO> <SUBJECT>Retention of official record.</SUBJECT> <P>The official record of every completed administrative hearing provided by these regulations shall be maintained and filed under the custody and control of the Chief Administrative Law Judge, or, where the case has been the subject of administrative review, the ARB.</P> </SECTION> <SECTION> <SECTNO>§ 502.47</SECTNO> <SUBJECT>Certification.</SUBJECT> <P>Upon receipt of a complaint seeking review of a decision issued pursuant to this part filed in a U.S. District Court, after the administrative remedies have been exhausted, the Chief Administrative Law Judge or, where the case has been the subject of administrative review, the ARB shall promptly index, certify and file with the appropriate U.S. District Court, a full, true, and correct copy of the entire record, including the transcript of proceedings.</P> </SECTION> </SUBJGRP> </SUBPART> </PART> <PART> <EAR>Pt. 504</EAR> <HD SOURCE="HED">PART 504—ATTESTATIONS BY FACILITIES USING NONIMMIGRANT ALIENS AS REGISTERED NURSES</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>8 U.S.C. 1101(a)(15)(H)(i)(a) and 1182(m); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2103; and sec. 341 (a) and (b), Pub. L. 103-182, 107 Stat. 2057.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 51014, Sept. 30, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 504.1</SECTNO> <SUBJECT>Cross-reference.</SUBJECT> <P>Regulations governing labor condition attestations by facilities using nonimmigrant aliens as registered nurses are found at 20 CFR part 655, subparts D and E.</P> </SECTION> </PART> <PART> <EAR>Pt. 505</EAR> <HD SOURCE="HED">PART 505—LABOR STANDARDS ON PROJECTS OR PRODUCTIONS ASSISTED BY GRANTS FROM THE NATIONAL ENDOWMENTS FOR THE ARTS AND HUMANITIES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>505.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>505.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>505.3</SECTNO> <SUBJECT>Prevailing minimum compensation.</SUBJECT> <SECTNO>505.4</SECTNO> <SUBJECT>Receipt of grant funds.</SUBJECT> <SECTNO>505.5</SECTNO> <SUBJECT>Adequate assurances.</SUBJECT> <SECTNO>505.6</SECTNO> <SUBJECT>Safety and health standards.</SUBJECT> <SECTNO>505.7</SECTNO> <SUBJECT>Failure to comply.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 5(j), Pub. L. 89-209, 79 Stat. 848 (20 U.S.C. 954(i)); sec. 7(g), Pub. L. 94-462, 90 Stat. 1971, as amended by sec. 107(4), Pub. L. 99-194, 99 Stat. 1337 (20 U.S.C. 956(g)); Secretary's Order 9-83 (48 FR 35736) and Secretary's Order 6-84 (49 FR 32473).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>53 FR 23541, June 22, 1988, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 505.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>(a) The regulations contained in this part set forth the procedures which are deemed necessary and appropriate to carry out the provisions of section 5(i) and section 7(g) of the National Foundation on the Arts and Humanities Act of 1965, as amended, 20 U.S.C. 954(i), 20 U.S.C. 956(g). As a condition to the receipt of any grant, the grantees must give adequate assurances that all professional performers and related or supporting professional personnel employed on projects or productions assisted by grants from the National Endowment for the Arts and the National Endowment for the Humanities shall receive not less than the prevailing minimum compensation as determined by the Secretary of Labor.</P> <P>(b) Regulations and procedures relating to wages on construction projects as provided in section 5(j) and section 7(j) of the National Foundation on the Arts and Humanities Act of 1965, as amended, may be found in parts 3 and 5 of this title.</P> <P>(c) Standards of overtime compensation for laborers or mechanics may be found in the Contract Work Hours and Safety Standards Act, 76 Stat. 357, 40 U.S.C. 327 <E T="03">et seq.</E> and part 5 of this title.</P> </SECTION> <SECTION> <PRTPAGE P="85"/> <SECTNO>§ 505.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) The term <E T="03">Act</E> means the National Foundation on the Arts and the Humanities Act of 1965, as amended, 79 Stat 848, as amended, 20 U.S.C. 951 <E T="03">et seq.</E> </P> <P>(b) The term <E T="03">Secretary</E> means the Secretary of Labor.</P> <P>(c) The term <E T="03">Administrator</E> means the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, or authorized representative, to whom is assigned the performance of functions of the Secretary pertaining to wages under the National Foundation on the Arts and the Humanities Act of 1965, as amended.</P> <P>(d) The term <E T="03">Assistant Secretary</E> means the Assistant Secretary for Occupational Safety and Health, U.S. Department of Labor, or authorized representative, to whom is assigned the performance of functions of the Secretary pertaining to safety and health under the National Foundation on the Arts and the Humanities Act of 1965, as amended.</P> <P>(e) <E T="03">Professional</E> in the phrase <E T="03">professional performer and related or supporting professional personnel</E> shall include all those who work for compensation on a project or production which is assisted by a grant from the National Endowment for the Arts or the National Endowment for the Humanities regardless of whether paid out of grant funds. It shall not include those whose status is <E T="03">amateur</E> because their engagement for performance or supporting work contemplates no compensation. Compensation does not include reimbursement of expenses (i.e., meals, costumes, make-up etc.). The words <E T="03">related or supporting . . . personnel</E> in the same phrase shall include all those whose work is related to the particular project or production such as musicians, stage hands, scenery designers, technicians, electricians and moving picture machine operators, as distinguished from those who operate a place for receiving an audience without reference to the particular project or production being exhibited, such as ushers, janitors, and those who sell and collect tickets. The phrase does not include laborers and mechanics employed by contractors or subcontractors on construction projects, whose compensation is regulated under section 5(j) and section 7(j) of the Act. The phrase <E T="03">professional performers and related or supporting professional personnel</E> shall not include persons employed as regular faculty or staff of an educational institution primarily performing duties commonly associated with the teaching profession. It shall include persons employed by educational institutions primarily to engage in activities customarily performed by performing artists or by those who assist in the presentation of performances assisted by grants from the National Endowment for the Arts or the National Endowment for the Humanities.</P> </SECTION> <SECTION> <SECTNO>§ 505.3</SECTNO> <SUBJECT>Prevailing minimum compensation.</SUBJECT> <P>(a)(1) In the absence of an alternative determination made by the Administrator under paragraph (b) of this section, and except as provided in paragraph (a)(2) of this section, the prevailing minimum compensation required to be paid under the Act to the various professional performers and related or supporting professional personnel employed on projects or productions assisted by grants from the National Endowment for the Arts and the National Endowment for the Humanities shall be the compensation (including fringe benefits) contained in collective bargaining agreements negotiated by the following national or international labor organizations or their local affiliates: </P> <EXTRACT> <FP SOURCE="FP-1">Actors' Equity Association.</FP> <FP SOURCE="FP-1">Screen Actors Guild, Inc.</FP> <FP SOURCE="FP-1">Screen Extras Guild, Inc.</FP> <FP SOURCE="FP-1">American Guild of Musical Artists, Inc.</FP> <FP SOURCE="FP-1">International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators.</FP> <FP SOURCE="FP-1">American Federation of Musicians.</FP> <FP SOURCE="FP-1">National Association of Broadcast Employees and Technicians.</FP> <FP SOURCE="FP-1">American Federation of Television and Radio Artists.</FP> <FP SOURCE="FP-1">International Brotherhood of Electrical Workers.</FP> <FP SOURCE="FP-1">American Guild of Variety Artists.</FP> <FP SOURCE="FP-1">Writers Guild.</FP> </EXTRACT> <P>(2) Professional performers and related or supporting professional personnel who are to perform activities <PRTPAGE P="86"/>which do not come within the jurisdiction of any collective bargaining agreement negotiated by the labor organizations named in paragraph (a)(1) of this section shall be paid minimum compensation as determined by agreement of the grant applicant or grantee and the personnel who will perform such activities or their representatives. Evidence of the agreement reached by the parties shall be submitted by the grant applicant to the grant agency, together with evidence of the prevailing minimum compensation for similar activities. If the parties do not agree on the minimum compensation to be paid to such personnel, the matter shall be referred to the Administrator of the Wage and Hour Division for final determination.</P> <P>(b)(1) Interested parties, including grant applicants, grantees, professional performers or related or supporting professional personnel and their representatives, may at any time submit to the Administrator a request for a determination of prevailing minimum compensation. The Administrator will make a determination concerning each such request in accordance with paragraph (b)(4) of this section.</P> <P>(2) Any request for a determination of prevailing minimum compensation shall include or be accompanied by information as to the locality or localities, the class or classes of professional performers or related or supporting professional personnel for the project or production in question, the names and addresses (to the extent known) of interested parties, and all available information relating to prevailing minimum compensation currently being paid to such persons or to persons employed in similar activities. No particular form is prescribed for submission of information under this section.</P> <P>(3) If the information specified in paragraph (b)(2) of this section is not submitted with a request for an alternative determination of prevailing minimum compensation or is insufficient to permit a determination, the Administrator may deny the request or request additional information, at the Administrator's discretion. Pertinent information from any source may be considered by the Administrator in connection with any request.</P> <P>(4) The Administrator will respond to a request for determination under this section within 30 days of receipt, by issuing a determination of alternative prevailing minimum compensation or denying the request or advising that additional time is necessary for a decision. If the Administrator determines from a preponderance of all relevant evidence obtained in connection with the request that the compensation provided for in the agreements negotiated by the labor organizations set forth in paragraph (a) of this section does not prevail for any professional performer or related or supporting professional personnel employed on similar activities in the locality, the Administrator will issue a determination of the prevailing minimum compensation required to be paid under the Act to such persons. If the Administrator finds that the compensation provided for in the agreements negotiated by the labor organizations set forth in paragraph (a) of this section does prevail for the professional performers or related or supporting professional personnel in question, the requesting party will be so notified.</P> <P>(c) All professional performers and related or supporting professional personnel (other than laborers or mechanics with respect to whom labor standards are prescribed in section 5(j) and 7(j) of the Act) employed on projects or productions which are financed in whole or in part under section 5 or section 7 of the Act will be paid, without subsequent deduction or rebate on any account, not less than the prevailing minimum compensation determined in accordance with paragraph (a) of this section, unless an alternative determination is made under paragraph (b) of this section. Pending the decision of the Administrator on a request for determination under paragraph (b) of this section, the grantee may be required to set aside in a separate escrow account sufficient funds to satisfy the difference between the compensation (including fringe benefits) actually paid to the employee(s) in question, and the <PRTPAGE P="87"/>compensation (including fringe benefits) required under the applicable collective bargaining agreement negotiated by the labor organization named in paragraph (a) of this section, or furnish a bond with a surety or sureties satisfactory to the Administrator for the protection of the compensation of the affected employees.</P> </SECTION> <SECTION> <SECTNO>§ 505.4</SECTNO> <SUBJECT>Receipt of grant funds.</SUBJECT> <P>(a) The grantee shall not receive funds authorized by section 5 or section 7 of the Act until adequate initial assurances have been filed with the Chairperson of the National Endowment for the Arts or the Chairperson of the National Endowment for the Humanities, pursuant to sections 5(i) (1) and (2) and sections 7(g) (1) and (2) of the Act as provided in § 505.5(a), that all professional performers and related or supporting professional personnel will be paid not less than the prevailing minimum compensation and that the safety and health requirements will be complied with. Neither shall the grantee receive any such funds if and after the Chairperson of the National Endowment for the Arts or Chairperson of the National Endowment for the Humanities is advised by the Secretary that continuing assurances as provided in § 505.5(b) are inadequate or that labor standards contemplated by sections 5(i) (1) and (2) or sections 7(g) (1) and (2) of the Act have not been observed.</P> <P>(b) In order to facilitate such assurances so that the grantee may receive the grant funds promptly, the Chairpersons of the National Endowment for the Arts and the National Endowment for the Humanities will transmit with the grant letter, to each grantee of a grant that will provide assistance to projects or productions employing professional performers or related or supporting professional personnel under section 5 or section 7 of the Act, a copy of these regulations together with two copies of the assurance form (Form No. ESA-38). The Chairperson will advise the grantee that before the grant may be received, the grantee must give assurances that all professional performers and related or supporting professional personnel (other than laborers or mechanics with respect to whom labor standards are prescribed in section 5(j) and section 7(j) of the Act), will be paid, without subsequent deduction or rebate on any account not less than the minimum compensation determined in accordance with § 505.3 (a) or (b) and that the safety and health requirements under § 505.6 will be met. The Chairpersons will maintain on file in Washington, DC, for a period of three (3) years and make available upon request of the Secretary the original signed Form ESA-38 and a copy of the grant letter together with any supplementary documents needed to give a description of the project or production to be financed in whole or in part under the grant.</P> </SECTION> <SECTION> <SECTNO>§ 505.5</SECTNO> <SUBJECT>Adequate assurances.</SUBJECT> <P>(a) <E T="03">Initial assurances.</E> The grantee shall give adequate initial assurances that not less than the prevailing minimum compensation determined in accordance with § 505.3 will be paid to all professional performers and related or supporting professional personnel, and that no part of the project or production will be performed under working conditions which are unsanitary or hazardous or dangerous to the health and safety of the employees, by executing and filing with the Chairperson of the National Endowment for the Arts or the Chairperson of the National Endowment for the Humanities, as appropriate, Form ESA-38.</P> <P>(b) <E T="03">Continuing assurances.</E> (1) The grantee shall maintain and preserve sufficient records as an assurance of compliance with section 5(i) (1) and (2) and section 7(g) (1) and (2) of the Act and shall make such reports therefrom to the Secretary as necessary or appropriate to assure the adequacy of the assurances given. Such records shall be kept for a period of three (3) years after the end of the grant period to which they pertain. These records shall include the following information relating to each performer and related or supporting professional personnel to whom a prevailing minimum compensation determination applies pursuant to § 505.3. In addition the record required in paragraph (b)(1)(vii) of this section shall be kept for all employees engaged in the project or production assisted by the grant.<PRTPAGE P="88"/> </P> <P>(i) Name.</P> <P>(ii) Home address.</P> <P>(iii) Occupation.</P> <P>(iv) Basic unit of compensation (such as the amount of a weekly or monthly salary, talent or performance fee, hourly rate or other basis on which compensation is computed), including fringe benefits or amounts paid in lieu thereof.</P> <P>(v) Work performed for each pay period expressed in terms of the total units of compensation fully and partially completed.</P> <P>(vi) Total compensation paid each pay period, deductions made, and date of payment, including amounts paid for fringe benefits and the person to whom they were paid, and</P> <P>(vii) Brief description of any injury incurred while performing under the grant and the dates and duration of disability.</P> <P>(2) The grantee shall permit the Administrator and the Assistant Secretary or their representatives to investigate and gather data regarding the wages, hours, safety, health, and other conditions and practices of employment related to the project or production, and to enter and inspect such project or production and such records (and make such transcriptions thereof), interview such employees during normal working hours, and investigate such facts, conditions, practices, or matters as may be deemed necessary or appropriate to determine whether the grantee has violated the labor standards contemplated by section 5(i) and section 7(g) of the Act.</P> <P>(c) <E T="03">Determination of adequacy.</E> The Administrator and Assistant Secretary shall determine the adequacy of assurances given pursuant to paragraphs (a) and (b) of this section within each of their respective areas of responsibilities, and may revise any such determination at any time.</P> <APPRO>(The requirements in paragraph (b) were approved by the Office of Management and Budget under control number 1215-0017)</APPRO> <CITA>[53 FR 23541, June 22, 1988; 53 FR 24171, June 27, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 505.6</SECTNO> <SUBJECT>Safety and health standards.</SUBJECT> <P>(a) <E T="03">Standards.</E> Section 5(i)(2) and section 7(g)(2) of the Act provide that “no part of any project or production which is financed in whole or in part under this section will be performed or engaged in under working conditions which are unsanitary or hazardous or dangerous to the health and safety of the employees engaged in such project or production. Compliance with the safety and sanitary laws in the State in which the performance or part thereof is to take place shall be prima facie evidence of compliance. * * *” The applicable safety and health standards shall be those set forth in 29 CFR parts 1910 and 1926, including matters incorporated by reference therein. Evidence of compliance with State laws relating to health and sanitation will be considered prime facie evidence of compliance with the safety and health requirements of the Act, 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 standards set forth in 29 CFR parts 1910 and 1926, including matters incorporated by reference therein.</P> <P>(b) <E T="03">Variances.</E> (1) Variances from standards applied under paragraph (a) of this section may be granted under the same circumstances in which variances may be granted under section 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 are those published in part 1905 of this title.</P> <P>(2) 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 applied under paragraph (a) of this section and in part 1910 of this title shall be deemed a variance from the standards under both the National Foundation on the Arts and Humanities Act of 1965 and the Williams-Steiger Occupational Safety and Health Act of 1970.</P> </SECTION> <SECTION> <SECTNO>§ 505.7</SECTNO> <SUBJECT>Failure to comply.</SUBJECT> <P>The Secretary's representatives shall maintain a list of those grantees who are considered to be responsible for instances of failure to comply with the obligation of the grantees specified in section 5(i) (1) and (2) and section 7(g) <PRTPAGE P="89"/>(1) and (2) of the Act, which are considered to have been willful or of such nature as to cast doubt on the reliability of formal assurances subsequently given and there shall be maintained a similar list where adjustment of the violations satisfactory to the Secretary was not properly made. Assurances from persons or organizations placed on either such list or any organization in which they have a substantial interest shall be considered inadequate for purposes of receiving further grants for a period not to exceed three (3) years from the date of notification by the Secretary that they have been placed on the lists unless, by appropriate application to the Secretary, they demonstrate a current responsibility to comply with section 5(i) (1) and (2) and section 7(g) (1) and (2) of the Act, and demonstrate that correction of the violations has been made.</P> </SECTION> </PART> <PART> <EAR>Pt. 506</EAR> <HD SOURCE="HED">PART 506—ATTESTATIONS BY EMPLOYERS USING ALIEN CREWMEMBERS FOR LONGSHORE ACTIVITIES IN U.S. PORTS</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>8 U.S.C. 1288 (c) and (d).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 51014, Sept. 30, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 506.1</SECTNO> <SUBJECT>Cross-reference.</SUBJECT> <P>Regulations governing attestations by employers using alien crewmembers for longshore activities in U.S. ports are found at 20 CFR part 655, subparts F and G.</P> </SECTION> </PART> <PART> <EAR>Pt. 507</EAR> <HD SOURCE="HED">PART 507—LABOR CONDITION APPLICATIONS AND REQUIREMENTS FOR EMPLOYERS USING NONIMMIGRANTS ON H-1B SPECIALTY VISAS IN SPECIALTY OCCUPATIONS AND AS FASHION MODELS</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>8 U.S.C. 1101(a)(15)(H)(i)(b), 1182(n), and 1184; 29 U.S.C. 49 <E T="03">et seq.</E>; Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 note); and sec. 341 (a) and (b), Pub. L. 103-182, 107 Stat. 2057.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 51014, Sept. 30, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 507.1</SECTNO> <SUBJECT>Cross-reference.</SUBJECT> <P>Regulations governing labor condition applications requirements for employers using nonimmigrants on H-1B specialty visas in specialty occupations and as fashion models are found at 20 CFR part 655, subparts H and I.</P> </SECTION> </PART> <PART> <EAR>Pt. 508</EAR> <HD SOURCE="HED">PART 508—ATTESTATIONS FILED BY EMPLOYERS UTILIZING F-1 STUDENTS FOR OFF-CAMPUS WORK</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>29 U.S.C. 49 <E T="03">et seq.</E>; and sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 51014, Sept. 30, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 508.1</SECTNO> <SUBJECT>Cross-reference.</SUBJECT> <P>Regulations governing attestations by employers using F-1 students in off-campus work are found at 20 CFR part 655, subparts J and K.</P> </SECTION> </PART> <PART> <EAR>Pt. 510</EAR> <HD SOURCE="HED">PART 510—IMPLEMENTATION OF THE MINIMUM WAGE PROVISIONS OF THE 1989 AMENDMENTS TO THE FAIR LABOR STANDARDS ACT IN PUERTO RICO</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>510.1</SECTNO> <SUBJECT>Summary.</SUBJECT> <SECTNO>510.2</SECTNO> <SUBJECT>Purpose and scope of regulations.</SUBJECT> <SECTNO>510.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Schedule of Minimum Wage Rates Applicable in Puerto Rico</HD> <SECTNO>510.10</SECTNO> <SUBJECT>Table of Wage Rates and Effective dates.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Classification of Industries</HD> <SECTNO>510.20</SECTNO> <SUBJECT>Wage surveys in Puerto Rico.</SUBJECT> <SECTNO>510.21</SECTNO> <SUBJECT>SIC codes.</SUBJECT> <SECTNO>510.22</SECTNO> <SUBJECT>Industries eligible for minimum wage phase-in.</SUBJECT> <SECTNO>510.23</SECTNO> <SUBJECT>Agricultural activities eligible for minimum wage phase-in.</SUBJECT> <SECTNO>510.24</SECTNO> <SUBJECT>Governmental entities eligible for minimum wage phase-in.</SUBJECT> <SECTNO>510.25</SECTNO> <SUBJECT>Traditional functions of government.</SUBJECT> <APP>Appendix A to Part 510—Manufacturing Industries Eligible for Minimum Wage Phase-in</APP> <APP>Appendix B to Part 510—Nonmanufacturing Industries Eligible for Minimum Wage Phase-in<PRTPAGE P="90"/> </APP> <APP>Appendix C to Part 510—Government Corporations Eligible for Minimum Wage Phase-in</APP> <APP>Appendix D to Part 510—Municipalities Eligible for Minimum Wage Phase-in</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 4, Pub. L. 101-157, 103 Stat. 938; 29 U.S.C. 201 <E T="03">et seq.</E> </P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>55 FR 12120, Mar. 30, 1990, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 510.1</SECTNO> <SUBJECT>Summary.</SUBJECT> <P>(a) The Fair Labor Standards Amendments of 1989 (Pub. L. 101-157) were enacted into law on November 17, 1989. Among other provisions, these amendments to the Fair Labor Standards Act (FLSA) increased the minimum wage in section 6(a)(1) of the Act to $3.80 an hour effective April 1, 1990, and to $4.25 an hour effective April 1, 1991. With respect to certain industries and governmental entities in the Commonwealth of Puerto Rico, the Amendments provided that these increases would be phased in over extended periods of time.</P> <P>(b) Section 6(c) of the FLSA provides for four separate categories or tiers for implementing the minimum wage rate increases in Puerto Rico.</P> <P>(1) For Tier 1, which includes employees of the United States, employees of hotels, motels, or restaurants, retail or service establishments that employ such employees primarily in connection with the preparation or offering of food or beverages for human consumption, and industries in which the average hourly wage is greater than $4.64, there shall be no phase-in. The wage rates and effective dates shall be those specified in section 6(a)(1) of FLSA, i.e., $3.80 per hour beginning April 1, 1990 and $4.25 per hour beginning April 1, 1991.</P> <P>(2) For Tier 2, which includes industries in which the average hourly wage is not less than $4.00 but not more than $4.64, the increases in the minimum wage rates shall be phased-in in five annual increments (rounded to the nearest 5 cents) beginning April 1, 1990, and ending April 1, 1994.</P> <P>(3) For Tier 3, which includes industries in which the average hourly wage is less than $4.00, the increases in the minimum wage shall be phased-in in six annual increments (rounded to the nearest 5 cents) beginning April 1, 1990, and ending April 1, 1995.</P> <P>(4) For Tier 4, which includes certain employees of the Commonwealth of Puerto Rico, municipalities, and other governmental entities of the Commonwealth in which the average hourly wage is less than $4.00, the increases shall be phased-in in seven annual increments (rounded to the nearest 5 cents) beginning April 1, 1990 and ending April 1, 1996.</P> <P>(c) The Amendments also eliminated reference to Puerto Rico in those sections of FLSA relating to the establishment and conduct of special industry committees which recommend minimum wage rates in certain territories. These sections now apply only to American Samoa. (Industry committee regulations pertaining to American Samoa are found in 29 CFR parts 511 and 697).</P> </SECTION> <SECTION> <SECTNO>§ 510.2</SECTNO> <SUBJECT>Purpose and scope of regulations.</SUBJECT> <P>(a) The purpose of these regulations is to implement the 1989 Amendments to the FLSA with respect to minimum wage increases in Puerto Rico. These regulations establish the applicable wage rates and effective dates in the four statutory tiers and categorize industries and governmental entities in Puerto Rico in those tiers according to average hourly wage rates. In addition, these regulations explain the methodology used to determine appropriate tiers, including the use of standard industrial classification (SIC) codes to categorize industries.</P> <P>(b) Subpart A of this part summarizes the provisions of the Amendments as applicable to Puerto Rico and defines the terms used herein. Subpart B of this part states the specific minimum wage rates for each tier and the effective dates of those rates. Subpart C of this part explains how industry and governmental categories were determined, the general methodology used to conduct the surveys which provided the data used to determine average hourly wage rates, and special issues in the classification of governmental entities. Appendix A of this <PRTPAGE P="91"/>part contains a listing of manufacturing industries by Standard Industrial Classification (SIC) code and indicates the tier to which each industry is subject. Appendix B of this part contains a listing of nonmanufacturing industries by SIC code and indicates the tier to which each industry is subject. Appendix C of this part contains a listing of government corporations and indicates the tier to which each such corporation is subject. Appendix D of this part contains a listing of municipalities and indicates the tier to which each municipality is subject.</P> <P>(c) Nothing contained in this part should be construed as precluding the Puerto Rico Minimum Wage Board, which has been granted authority to promulgate minimum wage rates above the Federal statutory minimum, from providing for increases in any industry which would exceed the rates provided for in these regulations or in section 6(a)(1) of the Act.</P> </SECTION> <SECTION> <SECTNO>§ 510.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Act</E> or <E T="03">FLSA</E> means the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201, <E T="03">et seq.</E>).</P> <P>(b) <E T="03">Amendments</E> or <E T="03">1989 Amendments</E> means the Fair Labor Standards Amendments of 1989 (Pub. L. 101-157).</P> <P>(c) <E T="03">Secretary</E> means the Secretary of Labor, or a duly authorized representative of the Secretary.</P> <P>(d) <E T="03">Administrator</E> means the Administrator of the Wage and Hour Division of the Employment Standards Administration, U.S. Department of Labor, or a duly authorized representative of the Administrator.</P> <P>(e) <E T="03">Department</E> means the U.S. Department of Labor.</P> <P>(f) <E T="03">Tier</E> means one of the four categories established for an extended phase-in of the statutory increases in the minimum wage under section 6(c) of the Act as amended.</P> <P>(g) <E T="03">Standard Industrial Classification (SIC)</E> refers to the classifications established in the <E T="03">Standard Industrial Classification Manual, 1987,</E> published by the Office of Management and Budget, Executive Office of the President.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Schedule of Minimum Wage Rates Applicable in Puerto Rico</HD> <SECTION> <SECTNO>§ 510.10</SECTNO> <SUBJECT>Table of wage rates and effective dates.</SUBJECT> <P>(a) The following table provides effective dates of minimum wage increases for the four statutory tiers. Appendices A and B to these regulations contain listings of manufacturing and non-manufacturing industries in Puerto Rico by SIC code, and indicate which tier is applicable. Appendices C and D contain listings of government corporations and municipalities and indicate which tier is applicable.</P> <GPOTABLE CDEF="s10,8,8,8,8,8,8,8" COLS="8" OPTS="L2"> <TTITLE>Effective Dates</TTITLE> <BOXHD> <CHED H="1">Tier</CHED> <CHED H="1">4/1/90</CHED> <CHED H="1">4/1/91</CHED> <CHED H="1">4/1/92</CHED> <CHED H="1">4/1/93</CHED> <CHED H="1">4/1/94</CHED> <CHED H="1">4/1/95</CHED> <CHED H="1">4/1/96</CHED> </BOXHD> <ROW> <ENT I="01">One</ENT> <ENT>$3.80</ENT> <ENT>$4.25</ENT> <ENT>$4.25</ENT> <ENT>$4.25</ENT> <ENT>$4.25</ENT> <ENT>$4.25</ENT> <ENT>$4.25</ENT> </ROW> <ROW> <ENT I="01">Two</ENT> <ENT>3.55</ENT> <ENT>3.70</ENT> <ENT>3.90</ENT> <ENT>4.05</ENT> <ENT>4.25</ENT> <ENT>4.25</ENT> <ENT>4.25</ENT> </ROW> <ROW> <ENT I="01">Three</ENT> <ENT>3.50</ENT> <ENT>3.65</ENT> <ENT>3.80</ENT> <ENT>3.95</ENT> <ENT>4.10</ENT> <ENT>4.25</ENT> <ENT>4.25</ENT> </ROW> <ROW> <ENT I="01">Four</ENT> <ENT>3.50</ENT> <ENT>3.60</ENT> <ENT>3.75</ENT> <ENT>3.85</ENT> <ENT>4.00</ENT> <ENT>4.10</ENT> <ENT>4.25</ENT> </ROW> </GPOTABLE> <P>(b) Tier 1 applies to employees of the United States, employees of hotels, motels, or restaurants, retail or service establishments that employ such employees primarily in connection with the preparation or offering of food or beverages for human consumption, and industries in which the average hourly wage is greater than $4.64.</P> <P>(c) Tier 2 applies to industries in which the average hourly wage is not less than $4.00 but not more than $4.64.</P> <P>(d) Tier 3 applies to industries in which the average hourly wage is less than $4.00.</P> <P>(e) Tier 4 applies to certain employees of the Commonwealth of Puerto Rico, municipalities, and other governmental entities of the Commonwealth in which the average hourly wage is less than $4.00.</P> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="92"/> <HD SOURCE="HED">Subpart C—Classification of Industries</HD> <SECTION> <SECTNO>§ 510.20</SECTNO> <SUBJECT>Wage surveys in Puerto Rico.</SUBJECT> <P>(a) The legislative history to the 1989 Amendments (Conference Report 101-47 on H.R. 2, May 8, 1989) stated that for any industry to qualify for an extended minimum wage phase-in, the government of Puerto Rico would be required to furnish official survey data substantiating that an industry's average hourly wage is below either the $4.65 or $4.00 threshold level. Such data were to be compiled and submitted for review to the Department.</P> <P>(b) <E T="03">Manufacturing industries.</E> For purposes of implementing section 6(c) of the Act, as amended, Puerto Rico has submitted its Census of Manufacturing Industries. The Bureau of Labor Statistics of Puerto Rico regularly gathers data from manufacturing establishments regarding employment, hours and earnings. The data include hourly earnings for production and related workers and are generally specific to the four-digit SIC code level.</P> <P>(c) <E T="03">Non-manufacturing industries.</E> The Bureau of Labor Statistics of Puerto Rico designed and executed a survey to supplement data regularly gathered for the U.S. Bureau of Labor Statistics (i.e., that included in the payroll establishment survey published in <E T="03">Employment and Earnings</E>). The supplemental survey was carried out to determine average hourly earnings for production workers or non-supervisory employees in the private non-agricultural, non-manufacturing sector. Employment and payroll information was collected for the payroll period which included April 12, 1989. The data provided to the Department were generally specific to the four-digit SIC code level.</P> <P>(d) <E T="03">Agriculture.</E> At the request of the Department, the Bureau of Labor Statistics of Puerto Rico conducted a survey of wages paid to agricultural workers which included employment and earnings from at least a specified number of sugarcane farms, coffee farms, ornamental farms, vegetable farms, and other farms, following standard statistical random sampling techniques. The survey included information on earnings, employment, and hourly wage rates paid to workers for the workweek including March 11 through March 17, 1990. In addition, applicable collective bargaining agreements were reviewed for sugarcane farms.</P> <P>(e) <E T="03">Commonwealth government.</E> In the case of the Commonwealth Government of Puerto Rico, a census of hourly earnings was undertaken of all government departments, commissions and other agencies. A separate survey was conducted of government corporations. Managers, officials and employees in positions which require a college degree were excluded from the surveys.</P> <P>(f) <E T="03">Municipalities.</E> In the case of the municipalities of Puerto Rico, a census of hourly earnings was conducted. Managers, officials and employees in positions which require a college degree were excluded from the survey.</P> <CITA>[55 FR 12120, Mar. 30, 1990, as amended at 55 FR 53247, Dec. 27, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 510.21</SECTNO> <SUBJECT>SIC codes.</SUBJECT> <P>(a) The Conference Report specifically cites Puerto Rico's annual Census of Manufacturing Industries as a source of average hourly wage data by industry. Industries in that census are organized by Standard Industrial Classification (SIC), the statistical classification system used for a variety of governmental and statistical purposes. With respect to non-manufacturing industries, or other industries not included in the Census of Manufacturing, the Conference Report stated that data “should be at a level of specificity comparable to the four digit Standard Industry Code (SIC) code level.”</P> <P>(b) The Standard Industrial Classification (SIC) codes listed in appendix A and B herein are designated in accordance with the Standard Industrial Classification (SIC) Manual, 1987, published by the Executive Office of the President, Office of Management and Budget. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. Copies may be inspected at all <PRTPAGE P="93"/>federal depository libraries in the Commonwealth of Puerto Rico; at the district office of the Wage and Hour Division, U.S. Department of Labor, New San Juan Office Building, 159 Chardon St., room 102, Hato Rey, PR 00918; at the Commonwealth of Puerto Rico Department of Labor and Human Resources, Prudencio Rivera Building, Munoz Rivera Avenue 505, Mato Rey, PR 00918; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: <E T="03">http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.</E> Establishments are classified according to their primary activity. The classification structure classifies industries by:</P> <P>(1) Two-digit major group,</P> <P>(2) Three digit industry group, or</P> <P>(3) Four-digit industry code, according to the level of industrial detail which may be required.</P> <FP>Each operating establishment is assigned an industry code on the basis of its primary activity, which is determined by its principal product or group of products produced or distributed, or services rendered.</FP> <CITA>[55 FR 12120, Mar. 30, 1990; 55 FR 12778, Apr. 5, 1990, as amended at 69 FR 18803, Apr. 9, 2004]</CITA> </SECTION> <SECTION> <SECTNO>§ 510.22</SECTNO> <SUBJECT>Industries eligible for minimum wage phase-in.</SUBJECT> <P>(a) Appendix A contains a listing of all industries included in the Census of Manufacturing. Appendix B contains a listing of non-manufacturing industries. These listing are organized by SIC numbers, presented by:</P> <P>(1) Major group (two-digit classification),</P> <P>(2) Industry group (three-digit classification), and (3) industry (four-digit classification). In each instance the phase-in tier which applies to that industry or group is indicated.</P> <P>(b) Employers are required to utilize the most detailed classification which applies to their industry. Where an employer's four-digit SIC code is listed, the tier applicable to that code determines the minimum wage phase-in schedule for that employer. (See § 510.10, above).</P> <P>(c) Where an industry is not listed by four-digit SIC code, employers shall utilize the three-digit which applies to their industry. If a three-digit code is not listed, employers shall use the applicable two-digit code.</P> <CITA>[55 FR 12120, Mar. 30, 1990; 55 FR 12778, Apr. 5, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 510.23</SECTNO> <SUBJECT>Agricultural activities eligible for minimum wage phase-in.</SUBJECT> <P>Agriculture activities eligible for an extended phase-in of the minimum wage in Major groups 01, 02, and 07 have been incorporated into Appendix B—Nonmanufacturing Industries Eligible for Minimum Wage Phase-In. Applicable wage rates are effective retroactive to April 1, 1990. Employers in the sugarcane farming industry (SIC Number 0133) who are subject to Tier 3 wage rates but who have paid wage rates based on Tier 2 wage rates may not take any action to recoup such payments where those actions would have the effect of reducing the wage rate being paid at the time of such recoupment to below that required under Tier 3.</P> <CITA>[55 FR 53247, Dec. 27, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 510.24</SECTNO> <SUBJECT>Governmental entities eligible for minimum wage phase-in.</SUBJECT> <P>(a) The Commonwealth government of Puerto Rico has been determined to be eligible for treatment under Tier 2, on the basis of wage data supplied to the Department.</P> <P>(b) Appendix C of this part contains a listing of Commonwealth government corporations, indicating the phase-in tier which applies. Entities which do not appear on the list are those for which no wage data were supplied. These entities are therefore categorized under Tier 1, and are ineligible for an extended phase-in.</P> <P>(c) Appendix D of the part contains a listing of municipalities, indicating the phase-in tier which applies. Municipalities categorized under Tier 1 are those which failed to supply wage data.</P> <P>(d) Employees of municipalities who have reason to believe that the municipality by which they are employed has been incorrectly categorized, e.g., categorized under Tier 3 instead of Tier 2, may no later than June 1, 1990, file <PRTPAGE P="94"/>with the Administrator a petition for review. The petition shall be accompanied by any information the employee may have to support a determination that the municipality is incorrectly categorized. In the event the Administrator determines that a tier other than that listed in appendix D of this part applies, the affected municipality shall be liable for retroactive payment of any back wages found to be due.</P> <P>(e) Certain employees of municipalities or government corporations in which the average wage is less than $4.00 per hour are eligible to be paid under Tier 4, rather than Tier 3. Tier 4 applies only to those employees employed by municipalities or government corporations who are principally engaged in one or more of the “traditional” functions listed in § 510.24 (a) or (b). All other employees of such entities must be paid in accordance with Tier 3.</P> <CITA>[55 FR 12120, Mar. 30, 1990; 55 FR 12778, Apr. 5, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 510.25</SECTNO> <SUBJECT>Traditional functions of government.</SUBJECT> <P>(a) Section 6(c)(4) of the Act, as amended, limits the six-year phase-in of the statutory minimum wage (“Tier 4”) to those employees with an average wage of less than $4.00 per hour who were brought under minimum wage coverage “pursuant to an amendment made by the Fair Labor Standards Amendments of 1985.” The Department has interpreted this language as referring to section 2(c) of the 1985 FLSA Amendments, which provided for deferred liability for minimum wage violations (until April 15, 1986) “with respect to any employee who would not have been covered under the Secretary's special enforcement policy” published in 29 CFR 775.2 and 775.4. The latter subsection listed those functions of State or local government which were determined by the Supreme Court's ruling in <E T="03">National League of Cities</E> v. <E T="03">Usery,</E> 426 U.S. 833 (1976) (subsequently overruled by <E T="03">Garcia</E> v. <E T="03">San Antonio Metropolitan Transit Authority,</E> 469 U.S. 528 (1985)) to be integral operations of the governments in areas of traditional governmental functions. The listed “traditional” functions included the following:</P> <P>(1) Schools.</P> <P>(2) Hospitals.</P> <P>(3) Fire prevention.</P> <P>(4) Police protection.</P> <P>(5) Sanitation.</P> <P>(6) Public health.</P> <P>(7) Parks and recreation.</P> <P>(8) Libraries.</P> <P>(9) Museums.</P> <P>(b) The Supreme Court in <E T="03">National League of Cities</E> clearly did not limit “traditional” functions of government to those set out in paragraph (a) of this section. The Court included within this concept all those governmental services which the States and their political subdivisions have traditionally afforded their citizens, which the States have regarded as integral parts of their governmental activities, and which State and local governments are created to provide. The Department interprets the Court's analysis of “traditional” functions as turning in large part upon whether the States or local governments had, prior to initial enactment of federal regulatory legislation applicable to a particular field of service or activity (such as FLSA), generally established themselves as providers of the services. The Department therefore views the following government functions as falling within the “traditional” category:</P> <P>(1) Finance (including Auditor, Budget and Comptroller).</P> <P>(2) Elections.</P> <P>(3) Personnel.</P> <P>(4) Public works.</P> <P>(5) Office of the Mayor.</P> <P>(6) Legal Affairs.</P> <P>(7) Planning.</P> <P>(8) Waterworks.</P> <P>(9) Social services.</P> <P>(10) Street and highway construction and maintenance.</P> <P>(11) Automobile licensing.</P> <P>(12) Sewage treatment.</P> <P>(c) Employees whose primary function falls within one or more of the activities listed in paragraph (a) or (b) of this section, are therefore considered to be engaged in “traditional” functions of government. This would include employees who provide support functions for such activities, such as <PRTPAGE P="95"/>clerical, secretarial, supply and janitorial.</P> <P>(d) No employees of a municipality or government corporation may be paid in accordance with the Tier 4 phase-in schedule unless the employee:</P> <P>(1) Is engaged in one of the specific activities listed in paragraphs (a) and (b) of this section, and</P> <P>(2) Is employed by a municipality or government corporation in which the average wage is less than $4.00 per hour.</P> </SECTION> <APPENDIX> <EAR>Pt. 510, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 510—Manufacturing Industries Eligible for Minimum Wage Phase-In</HD> <P>This appendix contains a listing of all manufacturing industries for which data were collected and compiled by the Commonwealth of Puerto Rico for purposes of implementing the 1989 Amendments to FLSA. This listing follows the order and classifications used in the <E T="03">SIC Manual, 1987,</E> which is incorporated by reference in these regulations (§ 510.21).</P> <P>The data in this appendix are presented by major industry group (two-digit classification), industry group number (three-digit classification), and industry number (four-digit classification). Tiers will not be listed for industry categories in which there were fewer than three employers, in conformance with standard procedures used by the Commonwealth of Puerto Rico in collecting and publishing these data until such time as Puerto Rico receives appropriate waivers of confidentiality from all employers in such categories. These categories are noted with an “a” on the following table. In addition, no tier will be listed where an industry was not included in the original survey, because it was not in existence, because the industry was too small to be included, or for other reasons.</P> <P>Employers who do not find the four-digit classification for their industry shall refer to the appropriate three-digit classification under which their establishment falls. If the appropriate three-digit classification is not listed, employers shall refer to the appropriate two-digit classification. For example, no tier is listed for industry number 2034, dried and dehydrated fruits, vegetables, and soup mixes. Thus, an employer in industry 2034 must use the tier listed for industry group 203, i.e. Tier 2.</P> <P>Further, employers who find the appropriate four-digit designation in this appendix <E T="03">must</E> use that designation and cannot refer to a two- or three-digit classification. For example, an employer in industry number 2033, canned fruits, vegetables, preserves, jams, and jellies, which has a Tier 1 designation, cannot use the Tier 2 designation of industry group 203, canned, frozen, and preserved fruits, vegetables, and food specialties.</P> <P>If no four-digit, three-digit, or two-digit classification is listed for an industry, employees in that group must pay the Tier 1 rates.</P> <P> <E T="03">Important:</E> In referring to this appendix to determine appropriate tier designations, please note that certain categories of employees are subject to treatment under Tier 1 regardless of the average hourly wage rate for the industry and the tier designation contained herein. These employees, as listed in the 1989 Amendments, are those employed by:</P> <P>(a) The United States</P> <P>(b) An establishment that is a hotel, motel, or restaurant, or</P> <P>(c) Any other retail or service establishment that employs such employee in connection with the preparation or offering of food or beverages for human consumption, either on the premises, or by such services as catering, banquet, box lunch, or curb or counter service, to the public, to employees, or to members or guests of clubs.</P> <P>Please note that these named categories may not correspond exactly to categories established by the SIC manual.</P> <GPOTABLE CDEF="xs30,10,10,5,r100" COLS="5" OPTS="L2"> <TTITLE>Manufacturing Industries</TTITLE> <BOXHD> <CHED H="1">Major group</CHED> <CHED H="1">Industry group number</CHED> <CHED H="1">Industry number</CHED> <CHED H="1">Tier</CHED> <CHED H="1">Industry</CHED> </BOXHD> <ROW> <ENT I="01">20</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Food and kindred products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>201</ENT> <ENT/> <ENT>2</ENT> <ENT>Meat products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2011</ENT> <ENT>2</ENT> <ENT>Meat packing plants.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2013</ENT> <ENT>1</ENT> <ENT>Sausages and other prepared meat products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2015</ENT> <ENT>2</ENT> <ENT>Poultry slaughtering and processing.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>202</ENT> <ENT/> <ENT>1</ENT> <ENT>Dairy products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2022</ENT> <ENT>a</ENT> <ENT>Natural, processed, and imitation cheese.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2023</ENT> <ENT>1</ENT> <ENT>Dry, condensed, and evaporated dairy products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2024</ENT> <ENT>1</ENT> <ENT>Ice cream and frozen desserts.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2026</ENT> <ENT>1</ENT> <ENT>Fluid milk.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>203</ENT> <ENT/> <ENT>2</ENT> <ENT>Canned, frozen, and preserved fruits, vegetables, and food specialties.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2032</ENT> <ENT>a</ENT> <ENT>Canned specialties.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2033</ENT> <ENT>1</ENT> <ENT>Canned fruits, vegetables, preserves, jams, and jellies.</ENT> </ROW> <ROW> <PRTPAGE P="96"/> <ENT I="22"/> <ENT/> <ENT>2035</ENT> <ENT>3</ENT> <ENT>Pickled fruits and vegetables, vegetable sauces and seasonings, and salad dressings.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2037</ENT> <ENT>2</ENT> <ENT>Frozen fruits, fruit juices, and vegetables.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2038</ENT> <ENT>3</ENT> <ENT>Frozen specialties, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>204</ENT> <ENT/> <ENT>1</ENT> <ENT>Grain mill products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2041</ENT> <ENT>a</ENT> <ENT>Flour and other grain mill products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2043</ENT> <ENT>a</ENT> <ENT>Cereal breakfast foods.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2044</ENT> <ENT>1</ENT> <ENT>Rice milling.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2045</ENT> <ENT>1</ENT> <ENT>Prepared flour mixes and doughs.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2046</ENT> <ENT>1</ENT> <ENT>Wet corn milling.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2048</ENT> <ENT>1</ENT> <ENT>Prepared feeds and feed ingredients for animals and fowls, except dogs and cats.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>205</ENT> <ENT/> <ENT>1</ENT> <ENT>Bakery products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2051</ENT> <ENT>1</ENT> <ENT>Bread and other bakery products, except cookies and crackers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2052</ENT> <ENT>1</ENT> <ENT>Cookies and crackers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2053</ENT> <ENT>a</ENT> <ENT>Frozen bakery products, except bread.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>206</ENT> <ENT/> <ENT>1</ENT> <ENT>Sugar and confectionery products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2061</ENT> <ENT>1</ENT> <ENT>Cane sugar, except refining.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2062</ENT> <ENT>a</ENT> <ENT>Cane sugar refining.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2064</ENT> <ENT>1</ENT> <ENT>Candy and other confectionery products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2066</ENT> <ENT>3</ENT> <ENT>Chocolate and cocoa products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2067</ENT> <ENT>a</ENT> <ENT>Chewing gum.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>208</ENT> <ENT/> <ENT>1</ENT> <ENT>Beverages.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2082</ENT> <ENT>1</ENT> <ENT>Malt beverages.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2084</ENT> <ENT>3</ENT> <ENT>Wines, brandy, and brandy spirits.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2085</ENT> <ENT>1</ENT> <ENT>Distilled and blended liquors.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2086</ENT> <ENT>1</ENT> <ENT>Bottled and canned soft drinks and carbonated waters.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2087</ENT> <ENT>1</ENT> <ENT>Flavoring extracts and flavoring syrups, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>209</ENT> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous food preparations and kindred products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2091</ENT> <ENT>1</ENT> <ENT>Canned and cured fish and seafoods.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2095</ENT> <ENT>2</ENT> <ENT>Roasted coffee.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2096</ENT> <ENT>1</ENT> <ENT>Potato chips, corn chips, and similar snacks.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2097</ENT> <ENT>3</ENT> <ENT>Manufactured ice.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2098</ENT> <ENT>a</ENT> <ENT>Macaroni, spaghetti, vermicelli, and noodles.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2099</ENT> <ENT>2</ENT> <ENT>Food preparations, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">21</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Tobacco products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>211</ENT> <ENT/> <ENT>a</ENT> <ENT>Cigarettes.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2111</ENT> <ENT>a</ENT> <ENT>Cigarettes.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>212</ENT> <ENT/> <ENT>1</ENT> <ENT>Cigars.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2121</ENT> <ENT>1</ENT> <ENT>Cigars.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>213</ENT> <ENT/> <ENT>1</ENT> <ENT>Chewing and smoking tobacco and snuff.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2131</ENT> <ENT>1</ENT> <ENT>Chewing and smoking tobacco and snuff.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>214</ENT> <ENT/> <ENT>a</ENT> <ENT>Tobacco stemming and redrying.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2141</ENT> <ENT>a</ENT> <ENT>Tobacco stemming and redrying.</ENT> </ROW> <ROW> <ENT I="01">22</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Textile mill products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>221</ENT> <ENT/> <ENT>1</ENT> <ENT>Broadwoven fabric mills, cotton.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2211</ENT> <ENT>1</ENT> <ENT>Broadwoven fabric mills, cotton.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>224</ENT> <ENT/> <ENT>1</ENT> <ENT>Narrow fabric and other smallwares mills: cotton, wool, silk, and manmade fiber.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2241</ENT> <ENT>1</ENT> <ENT>Narrow fabric and other smallwares mills: cotton, wool, silk, and manmade fiber.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>225</ENT> <ENT/> <ENT>2</ENT> <ENT>Knitting mills.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2251</ENT> <ENT>1</ENT> <ENT>Women's full-length and knee-length hosiery, except socks.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2253</ENT> <ENT>2</ENT> <ENT>Knit outerwear mills.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2254</ENT> <ENT>3</ENT> <ENT>Knit underwear and nightwear mills.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>226</ENT> <ENT/> <ENT>1</ENT> <ENT>Dyeing and finishing textiles, except wool fabrics and knit goods.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2261</ENT> <ENT>3</ENT> <ENT>Finishers of broadwoven fabrics of cotton.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2262</ENT> <ENT>1</ENT> <ENT>Finishers of broadwoven fabrics of manmade fiber and silk.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>227</ENT> <ENT/> <ENT>1</ENT> <ENT>Carpets and rugs.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2273</ENT> <ENT>1</ENT> <ENT>Carpets and rugs.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>228</ENT> <ENT/> <ENT>3</ENT> <ENT>Yarn and thread mills.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2281</ENT> <ENT>3</ENT> <ENT>Yarn spinning mills.</ENT> </ROW> <ROW> <ENT I="01">23</ENT> <ENT/> <ENT/> <ENT>2</ENT> <ENT>Apparel and other finished products made from fabrics and similar materials.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>231</ENT> <ENT/> <ENT>3</ENT> <ENT>Men's and boys' suits, coats, and overcoats.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2311</ENT> <ENT>3</ENT> <ENT>Men's and boys' suits, coats, and overcoats.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>232</ENT> <ENT/> <ENT>2</ENT> <ENT>Men's and boys' furnishings, work clothing, and allied garments.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2321</ENT> <ENT>2</ENT> <ENT>Men's and boys' shirts except work shirts.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2322</ENT> <ENT>1</ENT> <ENT>Men's and boys' underwear and nightwear.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2323</ENT> <ENT>2</ENT> <ENT>Men's and boys' neckwear.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2325</ENT> <ENT>2</ENT> <ENT>Men's and boys' separate trousers and slacks.</ENT> </ROW> <ROW> <PRTPAGE P="97"/> <ENT I="22"/> <ENT/> <ENT>2326</ENT> <ENT>3</ENT> <ENT>Men's and boys' work clothing.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2329</ENT> <ENT>3</ENT> <ENT>Men's and boys' clothing, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>233</ENT> <ENT/> <ENT>3</ENT> <ENT>Women's, misses', and juniors' outerwear.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2331</ENT> <ENT>3</ENT> <ENT>Women's, misses', and juniors' blouses and shirts.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2335</ENT> <ENT>3</ENT> <ENT>Women's, misses', and juniors dresses.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2337</ENT> <ENT>3</ENT> <ENT>Women's, misses, and juniors' suits, skirts, and coats.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2339</ENT> <ENT>2</ENT> <ENT>Women's, misses', and juniors' outerwear, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>234</ENT> <ENT/> <ENT>2</ENT> <ENT>Women's, misses', children's, and infants' undergarments.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2341</ENT> <ENT>2</ENT> <ENT>Women's, misses', children's, and infants' underwear and nightwear.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2342</ENT> <ENT>2</ENT> <ENT>Brassieres, girdles, and allied garments.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>235</ENT> <ENT/> <ENT>3</ENT> <ENT>Hats, caps, and millinery</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2353</ENT> <ENT>3</ENT> <ENT>Hats, caps, and millinery</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>236</ENT> <ENT/> <ENT>3</ENT> <ENT>Girls', children's, and infants' outerwear.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2361</ENT> <ENT>3</ENT> <ENT>Girls', children's, and infants' dresses, blouses, and shirts.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2369</ENT> <ENT>3</ENT> <ENT>Girls', children's, and infants' outerwear, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>238</ENT> <ENT/> <ENT>3</ENT> <ENT>Miscellaneous apparel and accessories.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2385</ENT> <ENT>3</ENT> <ENT>Waterproof outerwear.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2387</ENT> <ENT>3</ENT> <ENT>Apparel belts.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2389</ENT> <ENT>3</ENT> <ENT>Apparel and accessories, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>239</ENT> <ENT/> <ENT>3</ENT> <ENT>Miscellaneous fabricated textile products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2391</ENT> <ENT>2</ENT> <ENT>Curtains and draperies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2392</ENT> <ENT>3</ENT> <ENT>Housefurnishings, except curtains and draperies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2393</ENT> <ENT>3</ENT> <ENT>Textile bags.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2395</ENT> <ENT>2</ENT> <ENT>Pleating, decorative and novelty stitching, and tucking for the trade.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2396</ENT> <ENT>2</ENT> <ENT>Automotive trimmings, apparel findings, and related products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2399</ENT> <ENT>3</ENT> <ENT>Fabricated textile products, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">24</ENT> <ENT/> <ENT/> <ENT>2</ENT> <ENT>Lumber and wood products, except furniture.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>242</ENT> <ENT/> <ENT>3</ENT> <ENT>Sawmills and planing mills.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2421</ENT> <ENT>3</ENT> <ENT>Sawmills and planing mills, general.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>243</ENT> <ENT/> <ENT>2</ENT> <ENT>Millwork, veneer, plywood, and structural wood members.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2431</ENT> <ENT>2</ENT> <ENT>Millwork.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2434</ENT> <ENT>2</ENT> <ENT>Wood kitchen cabinets.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2435</ENT> <ENT>a</ENT> <ENT>Hardwood veneer and plywood.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>244</ENT> <ENT/> <ENT>3</ENT> <ENT>Wood containers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2448</ENT> <ENT>3</ENT> <ENT>Wood pallets and skids.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>245</ENT> <ENT/> <ENT>3</ENT> <ENT>Wood buildings and mobile homes.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2451</ENT> <ENT>3</ENT> <ENT>Mobile homes.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>249</ENT> <ENT/> <ENT>2</ENT> <ENT>Miscellaneous wood products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2491</ENT> <ENT>2</ENT> <ENT>Wood preserving.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2499</ENT> <ENT>2</ENT> <ENT>Wood products, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">25</ENT> <ENT/> <ENT/> <ENT>2</ENT> <ENT>Furniture and fixtures.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>251</ENT> <ENT/> <ENT>3</ENT> <ENT>Household furniture.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2511</ENT> <ENT>3</ENT> <ENT>Wood household furniture, except upholstered.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2512</ENT> <ENT>3</ENT> <ENT>Wood household furniture, upholstered.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2514</ENT> <ENT>3</ENT> <ENT>Metal household furniture.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2515</ENT> <ENT>2</ENT> <ENT>Mattresses, foundations, and convertible beds.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2517</ENT> <ENT>3</ENT> <ENT>Wood television, radio, phonograph, and sewing machine cabinets.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2519</ENT> <ENT>3</ENT> <ENT>Household furniture, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>252</ENT> <ENT/> <ENT>2</ENT> <ENT>Office furniture.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2521</ENT> <ENT>a</ENT> <ENT>Wood office furniture.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2522</ENT> <ENT>2</ENT> <ENT>Office furniture, except wood.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>253</ENT> <ENT/> <ENT>3</ENT> <ENT>Public building and related furniture.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2531</ENT> <ENT>3</ENT> <ENT>Public building and related furniture.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>254</ENT> <ENT/> <ENT>1</ENT> <ENT>Partitions, shelving, lockers, and office and store fixtures.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2541</ENT> <ENT>2</ENT> <ENT>Wood office and store fixtures, partitions, shelving, and lockers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2542</ENT> <ENT>1</ENT> <ENT>Office and store fixtures, partitions, shelving, and lockers, except wood.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>259</ENT> <ENT/> <ENT>2</ENT> <ENT>Miscellaneous furniture and fixtures.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2591</ENT> <ENT>3</ENT> <ENT>Drapery hardware and window blinds and shades.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2599</ENT> <ENT>a</ENT> <ENT>Furniture and fixtures, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">26</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Paper and allied products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>261</ENT> <ENT/> <ENT>1</ENT> <ENT>Pulp mills.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2611</ENT> <ENT>1</ENT> <ENT>Pulp mills.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>262</ENT> <ENT/> <ENT>2</ENT> <ENT>Paper mills.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2621</ENT> <ENT>2</ENT> <ENT>Paper mills.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>263</ENT> <ENT/> <ENT>a</ENT> <ENT>Paperboard mills.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2631</ENT> <ENT>a</ENT> <ENT>Paperboard mills.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>265</ENT> <ENT/> <ENT>1</ENT> <ENT>Paperboard containers and boxes.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2652</ENT> <ENT>1</ENT> <ENT>Setup paperboard boxes.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2653</ENT> <ENT>1</ENT> <ENT>Corrugated and solid fiber boxes.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2655</ENT> <ENT>1</ENT> <ENT>Fiber cans, tubes, drums, and similar products.</ENT> </ROW> <ROW> <PRTPAGE P="98"/> <ENT I="22"/> <ENT/> <ENT>2657</ENT> <ENT>1</ENT> <ENT>Folding paperboard boxes, including sanitary.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>267</ENT> <ENT/> <ENT>1</ENT> <ENT>Converted paper and paperboard products, except containers and boxes.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2671</ENT> <ENT>2</ENT> <ENT>Packaging paper and plastics film, coated and laminated.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2672</ENT> <ENT>a</ENT> <ENT>Coated and laminated paper, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2673</ENT> <ENT>2</ENT> <ENT>Plastics, foil, and coated paper bags.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2674</ENT> <ENT>1</ENT> <ENT>Uncoated paper and multiwall bags.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2676</ENT> <ENT>1</ENT> <ENT>Sanitary paper products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2677</ENT> <ENT>1</ENT> <ENT>Envelopes.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2678</ENT> <ENT>3</ENT> <ENT>Stationery, tablets, and related products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2679</ENT> <ENT>a</ENT> <ENT>Converted paper and paperboard products, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">27</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Printing, publishing, and allied industries.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>271</ENT> <ENT/> <ENT>1</ENT> <ENT>Newspapers: publishing, or publishing and printing.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2711</ENT> <ENT>1</ENT> <ENT>Newspapers: publishing, or publishing and printing.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>273</ENT> <ENT/> <ENT>a</ENT> <ENT>Books.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2731</ENT> <ENT>a</ENT> <ENT>Books: publishing, or publishing and printing.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2732</ENT> <ENT>3</ENT> <ENT>Book printing.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>274</ENT> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous publishing.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2741</ENT> <ENT>1</ENT> <ENT>Miscellaneous publishing.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>275</ENT> <ENT/> <ENT>1</ENT> <ENT>Commercial printing.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2752</ENT> <ENT>1</ENT> <ENT>Commercial printing, lithographic.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2754</ENT> <ENT>1</ENT> <ENT>Commercial printing, gravure.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2759</ENT> <ENT>1</ENT> <ENT>Commercial printing, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>276</ENT> <ENT/> <ENT>1</ENT> <ENT>Manifold business forms.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2761</ENT> <ENT>1</ENT> <ENT>Manifold business forms.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>278</ENT> <ENT/> <ENT>1</ENT> <ENT>Blankbooks, looseleaf binders, and bookbinding and related work.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2782</ENT> <ENT>1</ENT> <ENT>Blankbooks, looseleaf binders and devices.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>279</ENT> <ENT/> <ENT>1</ENT> <ENT>Service industries for the printing trade.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2796</ENT> <ENT>1</ENT> <ENT>Platemaking and related services.</ENT> </ROW> <ROW> <ENT I="01">28</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Chemicals and allied products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>281</ENT> <ENT/> <ENT>1</ENT> <ENT>Industrial inorganic chemicals.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2813</ENT> <ENT>1</ENT> <ENT>Industrial gases.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2819</ENT> <ENT>1</ENT> <ENT>Industrial inorganic chemicals, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>282</ENT> <ENT/> <ENT>1</ENT> <ENT>Plastics materials and synthetic resins, synthetic rubber, cellulosic and other manmade fibers, except glass.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2821</ENT> <ENT>a</ENT> <ENT>Plastics materials, synthetic resins, and nonvulcanizable elastomers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2822</ENT> <ENT>2</ENT> <ENT>Synthetic rubber (vulcanizable elastomers).</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>283</ENT> <ENT/> <ENT>1</ENT> <ENT>Drugs.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2833</ENT> <ENT>1</ENT> <ENT>Medicinal chemicals and botanical products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2834</ENT> <ENT>1</ENT> <ENT>Pharmaceutical preparations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2835</ENT> <ENT>1</ENT> <ENT>In vitro and in vivo diagnostic substances.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2836</ENT> <ENT>1</ENT> <ENT>Biological products, except diagnostic substances.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>284</ENT> <ENT/> <ENT>1</ENT> <ENT>Soap, detergents, and cleaning preparations; perfumes, cosmetics, and other toilet preparations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2841</ENT> <ENT>1</ENT> <ENT>Soap and other detergents, except specialty cleaners.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2842</ENT> <ENT>1</ENT> <ENT>Specialty cleaning, polishing, and sanitation preparations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2844</ENT> <ENT>1</ENT> <ENT>Perfumes, cosmetics, and other toilet preparations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>285</ENT> <ENT/> <ENT>1</ENT> <ENT>Paints, varnishes, lacquers, enamels, and allied products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2851</ENT> <ENT>1</ENT> <ENT>Paints, varnishes, lacquers, enamels, and allied products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>286</ENT> <ENT/> <ENT>1</ENT> <ENT>Industrial organic chemicals.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2865</ENT> <ENT>1</ENT> <ENT>Cyclic organic crudes and intermediates, and organic dyes and pigments.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2869</ENT> <ENT>a</ENT> <ENT>Industrial organic chemicals, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>287</ENT> <ENT/> <ENT>1</ENT> <ENT>Agricultural chemicals.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2873</ENT> <ENT>1</ENT> <ENT>Nitrogenous fertilizers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2879</ENT> <ENT>1</ENT> <ENT>Pesticides and agricultural chemicals, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>289</ENT> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous chemical products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2891</ENT> <ENT>1</ENT> <ENT>Adhesives and sealants.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2899</ENT> <ENT>1</ENT> <ENT>Chemicals and chemical preparations, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">29</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Petroleum refining and related industries.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>291</ENT> <ENT/> <ENT>1</ENT> <ENT>Petroleum refining.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2911</ENT> <ENT>1</ENT> <ENT>Petroleum refining.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>295</ENT> <ENT/> <ENT>1</ENT> <ENT>Asphalt paving and roofing materials.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2951</ENT> <ENT>1</ENT> <ENT>Asphalt paving mixtures and blocks.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2952</ENT> <ENT>1</ENT> <ENT>Asphalt felts and coatings.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>299</ENT> <ENT/> <ENT>a</ENT> <ENT>Miscellaneous products of petroleum and coal.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>2992</ENT> <ENT>a</ENT> <ENT>Lubricating oils and greases.</ENT> </ROW> <ROW> <ENT I="01">30</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Rubber and miscellaneous plastics products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>302</ENT> <ENT/> <ENT>1</ENT> <ENT>Rubber and plastics footwear.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3021</ENT> <ENT>1</ENT> <ENT>Rubber and plastics footwear.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>305</ENT> <ENT/> <ENT>2</ENT> <ENT>Gaskets, packing, and sealing devices and rubber and plastics hose and belting.</ENT> </ROW> <ROW> <PRTPAGE P="99"/> <ENT I="22"/> <ENT/> <ENT>3052</ENT> <ENT>2</ENT> <ENT>Rubber and plastics hose and belting.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>306</ENT> <ENT/> <ENT>2</ENT> <ENT>Fabricated rubber products, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3069</ENT> <ENT>2</ENT> <ENT>Fabricated rubber products, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>308</ENT> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous plastics products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3081</ENT> <ENT>a</ENT> <ENT>Unsupported plastics film and sheet.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3082</ENT> <ENT>3</ENT> <ENT>Unsupported plastics profile shapes.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3083</ENT> <ENT>1</ENT> <ENT>Laminated plastics plate, sheet, and profile shapes.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3084</ENT> <ENT>a</ENT> <ENT>Plastics pipe.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3085</ENT> <ENT>1</ENT> <ENT>Plastics bottles.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3086</ENT> <ENT>2</ENT> <ENT>Plastics foam products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3087</ENT> <ENT>3</ENT> <ENT>Custom compounding of purchased plastics resin.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3088</ENT> <ENT>1</ENT> <ENT>Plastics plumbing fixtures.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3089</ENT> <ENT>1</ENT> <ENT>Plastics products, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">31</ENT> <ENT/> <ENT/> <ENT>2</ENT> <ENT>Leather and leather products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>313</ENT> <ENT/> <ENT>2</ENT> <ENT>Boot and shoe cut stock and findings.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3131</ENT> <ENT>2</ENT> <ENT>Boot and shoe cut stock and findings.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>314</ENT> <ENT/> <ENT>2</ENT> <ENT>Footwear, except rubber.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3142</ENT> <ENT>b</ENT> <ENT>House slippers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3143</ENT> <ENT>2</ENT> <ENT>Men's footwear, except athletic.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3144</ENT> <ENT>1</ENT> <ENT>Women's footwear, except athletic.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3149</ENT> <ENT>2</ENT> <ENT>Footwear, except rubber, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>315</ENT> <ENT/> <ENT>3</ENT> <ENT>Leather gloves and mittens.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3151</ENT> <ENT>3</ENT> <ENT>Leather gloves and mittens.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>316</ENT> <ENT/> <ENT>3</ENT> <ENT>Luggage.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3161</ENT> <ENT>3</ENT> <ENT>Luggage.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>317</ENT> <ENT/> <ENT>2</ENT> <ENT>Handbags and other personal leather goods.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3171</ENT> <ENT>3</ENT> <ENT>Women's handbags and purses.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3172</ENT> <ENT>1</ENT> <ENT>Personal leather goods, except women's handbags and purses.</ENT> </ROW> <ROW> <ENT I="01">32</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Stone, clay, glass, and concrete products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>321</ENT> <ENT/> <ENT>2</ENT> <ENT>Flat glass.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3211</ENT> <ENT>2</ENT> <ENT>Flat glass.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>322</ENT> <ENT/> <ENT>1</ENT> <ENT>Glass and glassware, pressed or blown.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3221</ENT> <ENT>1</ENT> <ENT>Glass containers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>323</ENT> <ENT/> <ENT>1</ENT> <ENT>Glass products, made of purchased glass.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3231</ENT> <ENT>1</ENT> <ENT>Glass products, made of purchased glass.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>324</ENT> <ENT/> <ENT>1</ENT> <ENT>Cement, hydraulic.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3241</ENT> <ENT>1</ENT> <ENT>Cement, hydraulic.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>326</ENT> <ENT/> <ENT>3</ENT> <ENT>Pottery and related products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3261</ENT> <ENT>3</ENT> <ENT>Vitreous china plumbing fixtures and china and earthenware fittings and bathroom accessories.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3269</ENT> <ENT>3</ENT> <ENT>Pottery products, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>327</ENT> <ENT/> <ENT>1</ENT> <ENT>Concrete, gypsum, and plaster products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3271</ENT> <ENT>2</ENT> <ENT>Concrete block and brick.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3272</ENT> <ENT>1</ENT> <ENT>Concrete products, except block and brick.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3273</ENT> <ENT>1</ENT> <ENT>Ready-mixed concrete.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3274</ENT> <ENT>1</ENT> <ENT>Lime.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3275</ENT> <ENT>a</ENT> <ENT>Gypsum products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>328</ENT> <ENT/> <ENT>1</ENT> <ENT>Cut stone and stone products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3281</ENT> <ENT>1</ENT> <ENT>Cut stone and stone products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>329</ENT> <ENT/> <ENT>1</ENT> <ENT>Abrasive, asbestos, and miscellaneous nonmetallic mineral products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3295</ENT> <ENT>a</ENT> <ENT>Minerals and earths, ground or otherwise treated.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3296</ENT> <ENT>1</ENT> <ENT>Mineral wool.</ENT> </ROW> <ROW> <ENT I="01">33</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Primary metal industries.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>331</ENT> <ENT/> <ENT>1</ENT> <ENT>Steel works, blast furnaces, and rolling and finishing mills.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3312</ENT> <ENT>1</ENT> <ENT>Steel works, blast furnaces (including coke ovens), and rolling mills.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3317</ENT> <ENT>1</ENT> <ENT>Steel pipe and tubes.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>334</ENT> <ENT/> <ENT>1</ENT> <ENT>Secondary smelting and refining of nonferrous metals.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3341</ENT> <ENT>1</ENT> <ENT>Secondary smelting and refining of nonferrous metals.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>335</ENT> <ENT/> <ENT>1</ENT> <ENT>Rolling, drawing, and extruding of nonferrous metals.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3351</ENT> <ENT>1</ENT> <ENT>Rolling, drawing, and extruding of copper.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3353</ENT> <ENT>a</ENT> <ENT>Aluminum sheet, plate, and foil.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3354</ENT> <ENT>1</ENT> <ENT>Aluminum extruded products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>336</ENT> <ENT/> <ENT>a</ENT> <ENT>Nonferrous foundries (castings).</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3365</ENT> <ENT>a</ENT> <ENT>Aluminum foundries.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>339</ENT> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous primary metal products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3398</ENT> <ENT>a</ENT> <ENT>Metal heat treating.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3399</ENT> <ENT>1</ENT> <ENT>Primary metal products, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">34</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Fabricated metal products, except machinery and transportation equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>341</ENT> <ENT/> <ENT>1</ENT> <ENT>Metal cans and shipping containers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3411</ENT> <ENT>1</ENT> <ENT>Metal cans.</ENT> </ROW> <ROW> <PRTPAGE P="100"/> <ENT I="22"/> <ENT/> <ENT>3412</ENT> <ENT>1</ENT> <ENT>Metal shipping barrels, drums, kegs, and pails.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>342</ENT> <ENT/> <ENT>1</ENT> <ENT>Cutlery, handtools, and general hardware.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3421</ENT> <ENT>3</ENT> <ENT>Cutlery.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3423</ENT> <ENT>a</ENT> <ENT>Hand and edge tools, except machine tools and handsaws.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3429</ENT> <ENT>a</ENT> <ENT>Hardware, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>343</ENT> <ENT/> <ENT>2</ENT> <ENT>Heating equipment, except electric and warm air; and plumbing fixtures.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3433</ENT> <ENT>2</ENT> <ENT>Heating equipment, except electric and warm air furnaces.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>344</ENT> <ENT/> <ENT>2</ENT> <ENT>Fabricated structural metal products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3441</ENT> <ENT>1</ENT> <ENT>Fabricated structural metal.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3442</ENT> <ENT>2</ENT> <ENT>Metal doors, sash, frames, molding, and trim.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3443</ENT> <ENT>1</ENT> <ENT>Fabricated plate work (boiler shops).</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3444</ENT> <ENT>2</ENT> <ENT>Sheet metal work.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3446</ENT> <ENT>3</ENT> <ENT>Architectural and ornamental metal work.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3449</ENT> <ENT>2</ENT> <ENT>Miscellaneous structural metal work.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>345</ENT> <ENT/> <ENT>1</ENT> <ENT>Screw machine products, and bolts, nuts, screws, rivets, and washers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3452</ENT> <ENT>1</ENT> <ENT>Bolts, nuts, screws, rivets, and washers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>346</ENT> <ENT/> <ENT>1</ENT> <ENT>Metal forgings and stampings.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3469</ENT> <ENT>1</ENT> <ENT>Metal stampings, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>347</ENT> <ENT/> <ENT>2</ENT> <ENT>Coating, engraving, and allied services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3471</ENT> <ENT>2</ENT> <ENT>Electroplating, plating, polishing, anodizing and coloring.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>349</ENT> <ENT/> <ENT>2</ENT> <ENT>Miscellaneous fabricated metal products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3494</ENT> <ENT>1</ENT> <ENT>Valves and pipe fittings, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3495</ENT> <ENT>2</ENT> <ENT>Wire springs.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3496</ENT> <ENT>1</ENT> <ENT>Miscellaneous fabricated wire products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3498</ENT> <ENT>a</ENT> <ENT>Fabricated pipe and pipe fittings.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3499</ENT> <ENT>2</ENT> <ENT>Fabricated metal products, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">35</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Industrial and commercial machinery and computer equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>353</ENT> <ENT/> <ENT>a</ENT> <ENT>Construction, mining, and materials handling machinery and equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3535</ENT> <ENT>a</ENT> <ENT>Conveyors and conveying equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>354</ENT> <ENT/> <ENT>1</ENT> <ENT>Metalworking machinery and equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3541</ENT> <ENT>a</ENT> <ENT>Machine tools, metal cutting types.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3544</ENT> <ENT>1</ENT> <ENT>Special dies and tools, die sets, jigs and fixtures, and industrial molds.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3545</ENT> <ENT>1</ENT> <ENT>Cutting tools, machine tool accessories, and machinists' precision measuring devices.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>355</ENT> <ENT/> <ENT>1</ENT> <ENT>Special industry machinery, except metalworking machinery.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3555</ENT> <ENT>1</ENT> <ENT>Printing trades machinery and equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>356</ENT> <ENT/> <ENT>1</ENT> <ENT>General industrial machinery and equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3562</ENT> <ENT>a</ENT> <ENT>Ball and roller bearings.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3563</ENT> <ENT>1</ENT> <ENT>Air and gas compressors.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3564</ENT> <ENT>a</ENT> <ENT>Industrial and commercial fans and blowers and air purification equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3568</ENT> <ENT>1</ENT> <ENT>Mechanical power transmission equipment, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3569</ENT> <ENT>1</ENT> <ENT>General industrial machinery and equipment, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>357</ENT> <ENT/> <ENT>1</ENT> <ENT>Computer and office equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3571</ENT> <ENT>3</ENT> <ENT>Electronic computers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3572</ENT> <ENT>1</ENT> <ENT>Computer storage devices.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3577</ENT> <ENT>1</ENT> <ENT>Computer peripheral equipment, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3579</ENT> <ENT>1</ENT> <ENT>Office machines, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>358</ENT> <ENT/> <ENT>1</ENT> <ENT>Refrigeration and service industry machinery.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3585</ENT> <ENT>1</ENT> <ENT>Air-conditioning and warm air heating equipment and commercial and industrial refrigeration equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3589</ENT> <ENT>b</ENT> <ENT>Service industry machinery, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>359</ENT> <ENT/> <ENT>2</ENT> <ENT>Miscellaneous industrial and commercial machinery and equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3592</ENT> <ENT>2</ENT> <ENT>Carburetors, pistons, piston rings, and valves.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3596</ENT> <ENT>a</ENT> <ENT>Scales and balances, except laboratory.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3599</ENT> <ENT>1</ENT> <ENT>Industrial and commercial machinery and equipment, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">36</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Electronic and other electrical equipment and components, except computer equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>361</ENT> <ENT/> <ENT>1</ENT> <ENT>Electronic transmission and distribution equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3612</ENT> <ENT>1</ENT> <ENT>Power, distribution, and specialty transformers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3613</ENT> <ENT>1</ENT> <ENT>Switchgear and switchboard apparatus.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>362</ENT> <ENT/> <ENT>1</ENT> <ENT>Electrical industrial apparatus.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3621</ENT> <ENT>1</ENT> <ENT>Motors and generators.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3624</ENT> <ENT>1</ENT> <ENT>Carbon and graphite products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3625</ENT> <ENT>1</ENT> <ENT>Relays and industrial controls.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3629</ENT> <ENT>1</ENT> <ENT>Electrical industrial apparatus, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>363</ENT> <ENT/> <ENT>a</ENT> <ENT>Household appliances.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3639</ENT> <ENT>a</ENT> <ENT>Household appliances, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>364</ENT> <ENT/> <ENT>1</ENT> <ENT>Electric lighting and wiring equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3641</ENT> <ENT>1</ENT> <ENT>Electric lamp bulbs and tubes.</ENT> </ROW> <ROW> <PRTPAGE P="101"/> <ENT I="22"/> <ENT/> <ENT>3643</ENT> <ENT>1</ENT> <ENT>Current-carrying wiring devices.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3644</ENT> <ENT>1</ENT> <ENT>Noncurrent-carrying wiring devices.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3645</ENT> <ENT>a</ENT> <ENT>Residential electric lighting fixtures.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3646</ENT> <ENT>2</ENT> <ENT>Commercial, industrial, and institutional electric lighting fixtures.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3648</ENT> <ENT>2</ENT> <ENT>Lighting equipment, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>365</ENT> <ENT/> <ENT>1</ENT> <ENT>Household audio and video equipment, and audio recordings.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3651</ENT> <ENT>1</ENT> <ENT>Household audio and video equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3652</ENT> <ENT>a</ENT> <ENT>Phonograph records and pre-recorded audio tapes and disks.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>366</ENT> <ENT/> <ENT>1</ENT> <ENT>Communications equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3661</ENT> <ENT>1</ENT> <ENT>Telephone and telegraph apparatus.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3663</ENT> <ENT>1</ENT> <ENT>Radio and television broadcasting and communications equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3669</ENT> <ENT>1</ENT> <ENT>Communications equipment, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>367</ENT> <ENT/> <ENT>1</ENT> <ENT>Electronic components and accessories.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3672</ENT> <ENT>2</ENT> <ENT>Printed circuit boards.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3674</ENT> <ENT>1</ENT> <ENT>Semiconductors and related devices.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3677</ENT> <ENT>2</ENT> <ENT>Electronic coils, transformers and other inductors.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3678</ENT> <ENT>1</ENT> <ENT>Electronic connectors.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3679</ENT> <ENT>1</ENT> <ENT>Electronic components, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>369</ENT> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous electrical machinery, equipment, and supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3692</ENT> <ENT>1</ENT> <ENT>Primary batteries, dry and wet.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3694</ENT> <ENT>1</ENT> <ENT>Electrical equipment for internal combustion engines.</ENT> </ROW> <ROW> <ENT I="01">37</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Transportation Equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>371</ENT> <ENT/> <ENT>1</ENT> <ENT>Motor vehicles and motor vehicle equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3713</ENT> <ENT>1</ENT> <ENT>Truck and bus bodies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3714</ENT> <ENT>1</ENT> <ENT>Motor vehicle parts and accessories.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>372</ENT> <ENT/> <ENT>1</ENT> <ENT>Aircraft and parts.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3721</ENT> <ENT>a</ENT> <ENT>Aircraft.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3728</ENT> <ENT>1</ENT> <ENT>Aircraft parts and auxiliary equipment, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>373</ENT> <ENT/> <ENT>1</ENT> <ENT>Ship and boat building and repairing.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3731</ENT> <ENT>a</ENT> <ENT>Ship building and repairing.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3732</ENT> <ENT>2</ENT> <ENT>Boat building and repairing.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>379</ENT> <ENT/> <ENT>a</ENT> <ENT>Miscellaneous transportation equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3792</ENT> <ENT>a</ENT> <ENT>Travel trailers and campers.</ENT> </ROW> <ROW> <ENT I="01">38</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Measuring, analyzing, and controlling instruments; photographic, medical, and optical goods, watches and clocks.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>381</ENT> <ENT/> <ENT>1</ENT> <ENT>Search, detection, navigation, guidance, aeronautical, and nautical systems, instruments, and equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3812</ENT> <ENT>1</ENT> <ENT>Search, detection, navigation, guidance, aeronautical, and nautical systems, instruments, and equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>382</ENT> <ENT/> <ENT>1</ENT> <ENT>Laboratory apparatus and analytical, optical, measuring, and controlling instrument.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3821</ENT> <ENT>1</ENT> <ENT>Laboratory apparatus and furniture.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3822</ENT> <ENT>1</ENT> <ENT>Automatic controls for regulating residential and commercial environments and appliances.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3823</ENT> <ENT>1</ENT> <ENT>Industrial instruments for measurement, display, and control of process variables; and related products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3824</ENT> <ENT>a</ENT> <ENT>Totalizing fluid meters and counting devices.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3825</ENT> <ENT>1</ENT> <ENT>Instruments for measuring and testing of electricity and electrical signals.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3829</ENT> <ENT>2</ENT> <ENT>Measuring and controlling devices, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>384</ENT> <ENT/> <ENT>1</ENT> <ENT>Surgical, medical, and dental instruments and supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3841</ENT> <ENT>1</ENT> <ENT>Surgical and medical instruments and apparatus.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3842</ENT> <ENT>1</ENT> <ENT>Orthopedic, prosthetic, and surgical appliances and supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3843</ENT> <ENT>1</ENT> <ENT>Dental equipment and supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3844</ENT> <ENT>a</ENT> <ENT>X-ray apparatus and tubes and related irradiation apparatus.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3845</ENT> <ENT>1</ENT> <ENT>Electromedical and electrotherapeutic apparatus.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>385</ENT> <ENT/> <ENT>1</ENT> <ENT>Ophthalmic goods.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3851</ENT> <ENT>1</ENT> <ENT>Ophthalmic goods.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>386</ENT> <ENT/> <ENT>a</ENT> <ENT>Photographic equipment and supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3861</ENT> <ENT>a</ENT> <ENT>Photographic equipment and supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>387</ENT> <ENT/> <ENT>1</ENT> <ENT>Watches, clocks, clockwork operated devices, and parts.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3873</ENT> <ENT>1</ENT> <ENT>Watches, clocks, clockwork operated devices, and parts.</ENT> </ROW> <ROW> <ENT I="01">39</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous manufacturing industries.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>391</ENT> <ENT/> <ENT>1</ENT> <ENT>Jewelry, silverware, and plated ware.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3911</ENT> <ENT>1</ENT> <ENT>Jewelry, precious metal.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3914</ENT> <ENT>a</ENT> <ENT>Silverware, plated ware, and stainless steel ware.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3915</ENT> <ENT>1</ENT> <ENT>Jewelers' findings and materials, and lapidary work.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>394</ENT> <ENT/> <ENT>2</ENT> <ENT>Dolls, toys, games, and sporting and athletic goods.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3942</ENT> <ENT>2</ENT> <ENT>Dolls and stuffed toys.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3949</ENT> <ENT>2</ENT> <ENT>Sporting and athletic goods, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>395</ENT> <ENT/> <ENT>2</ENT> <ENT>Pens, pencils, and other artists' materials.</ENT> </ROW> <ROW> <PRTPAGE P="102"/> <ENT I="22"/> <ENT/> <ENT>3951</ENT> <ENT>3</ENT> <ENT>Pens, mechanical pencils, and parts.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3952</ENT> <ENT>a</ENT> <ENT>Lead pencils, crayons, and artists' materials.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3953</ENT> <ENT>1</ENT> <ENT>Marking devices.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>396</ENT> <ENT/> <ENT>1</ENT> <ENT>Costume jewelry, costume novelties, buttons, and miscellaneous notions, except precious metal.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3961</ENT> <ENT>1</ENT> <ENT>Costume jewelry and costume novelties, except precious metal.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3965</ENT> <ENT>a</ENT> <ENT>Fasteners, buttons, needles, and pins.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>399</ENT> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous manufacturing industries.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3991</ENT> <ENT>a</ENT> <ENT>Brooms and brushes.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3993</ENT> <ENT>2</ENT> <ENT>Signs and advertising specialties.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3995</ENT> <ENT>2</ENT> <ENT>Burial caskets.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>3999</ENT> <ENT>2</ENT> <ENT>Manufacturing industries, not elsewhere classified.</ENT> </ROW> <TNOTE> a=Category contained less than three employers.</TNOTE> </GPOTABLE> <CITA>[55 FR 12120, Mar. 30, 1990; 55 FR 12778, Apr. 5, 1990, as amended at 55 FR 39575, Sept. 27, 1990; 57 FR 1103, Jan. 10, 1992]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 510, App. B</EAR> <HD SOURCE="HED">Appendix B to Part 510—Nonmanufacturing Industries Eligible for Minimum Wage Phase-In</HD> <P>This appendix contains a listing of all non-manufacturing industries (except those in major groups 01, 02, 08, and 09, pertaining to agriculture) for which data were collected and compiled by the Commonwealth of Puerto Rico for purposes of implementing the 1989 Amendments to FLSA. This listing follows the order and classifications used in the <E T="03">SIC Manual, 1987,</E> which is incorporated by reference in these regulations (§ 510.21).</P> <P>The data in this appendix are presented by major industry group (two-digit classification), industry group number (three-digit classification), and industry number (four-digit classification).</P> <P>Tiers will not be listed for industry categories in which there were fewer than three responding employers, or one responding employer had more than 80 percent of the employment in the category, in conformance with practices of the U.S. Bureau of Labor Statistics in collecting and publishing similar data, until such time as Puerto Rico receives appropriate waivers of confidentiality from all employers in such categories. These categories are noted with an “a” on the following table. In situations where one or more employers declined to furnish a waiver, categories are noted with a “b” on the following table.</P> <P>In addition, no tier will be listed where an industry was not included in the original survey because it was not in existence, because the industry was too small to be included, or for other reasons.</P> <P>Employers who do not find the four-digit classification for their industry shall refer to the appropriate three-digit classification under which their establishment falls. If the appropriate three-digit classification is not listed, employers shall refer to the appropriate two-digit classification.</P> <P>For example, no tier is listed for industry number 1423, crushed and broken granite. However, a tier is listed for industry group 142, crushed and broken stone, including riprap. Thus, an employer in industry 1423 must use the tier listed for industry group 142, <E T="03">i.e.,</E> Tier 1. Furthermore, employers who find the appropriate four-digit designation in this appendix <E T="03">must</E> use that designation and cannot refer to a two- or three-digit classification. For example, an employer with industry number 5719, miscellaneous homefurnishings stores, which has a Tier 1 designation, cannot refer to industry group number 571, home furniture and furnishings stores, which has a Tier 2 designation.</P> <P> <E T="03">Important:</E> In referring to this appendix to determine appropriate tier designations, please note that certain categories of employees are subject to treatment under Tier 1 regardless of the average hourly wage rate for the industry and the tier designation contained herein. These employees, as listed in the 1989 Amendments, are those employed by:</P> <P>(a) The United States,</P> <P>(b) An establishment that is a hotel, motel, or restaurant, or</P> <P>(c) Any other retail or service establishment that employs such employee in connection with the preparation or offering of food or beverages for human consumption, either on the premises, or by such services as catering, banquet, box lunch, or curb or counter service, to the public, to employees, or to members or guests of clubs.</P> <P>Please note that these named categories may not correspond exactly to categories established by the SIC manual.<PRTPAGE P="103"/> </P> <P>If no four-digit, three-digit, or two-digit classification is listed for an industry, employers in that group must pay the Tier 1 rates.</P> <GPOTABLE CDEF="xs30,10,10,5,r100" COLS="5" OPTS="L2"> <TTITLE>Nonmanufacturing Industries</TTITLE> <BOXHD> <CHED H="1">Major group</CHED> <CHED H="1">Industry group number</CHED> <CHED H="1">Industry number</CHED> <CHED H="1">Tier</CHED> <CHED H="1">Industry</CHED> </BOXHD> <ROW> <ENT I="01">01</ENT> <ENT/> <ENT/> <ENT>3</ENT> <ENT>Agricultural production—crops.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>011</ENT> <ENT/> <ENT>3</ENT> <ENT>Cash grains.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0119</ENT> <ENT>3</ENT> <ENT>Cash grains, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>013</ENT> <ENT/> <ENT>3</ENT> <ENT>Field crops, except cash grains.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0133</ENT> <ENT>3</ENT> <ENT>Sugarcane and sugar beets.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0139</ENT> <ENT>3</ENT> <ENT>Field crops, except cash grains, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>016</ENT> <ENT/> <ENT>3</ENT> <ENT>Vegetables and melons.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0161</ENT> <ENT>3</ENT> <ENT>Vegetables and melons.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>017</ENT> <ENT/> <ENT>3</ENT> <ENT>Fruits and tree nuts.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0174</ENT> <ENT>3</ENT> <ENT>Citrus fruits.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0179</ENT> <ENT>3</ENT> <ENT>Fruits and tree nuts, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>018</ENT> <ENT/> <ENT>3</ENT> <ENT>Horticultural specialties.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0181</ENT> <ENT>3</ENT> <ENT>Ornamental floriculture and nursery products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>019</ENT> <ENT/> <ENT>3</ENT> <ENT>General farms, primarily crop.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0191</ENT> <ENT>3</ENT> <ENT>General farms, primarily crop.</ENT> </ROW> <ROW> <ENT I="01">02</ENT> <ENT/> <ENT/> <ENT>3</ENT> <ENT>Agricultural production—livestock and animal specialties.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>021</ENT> <ENT/> <ENT>3</ENT> <ENT>Livestock, except dairy and poultry.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0211</ENT> <ENT>3</ENT> <ENT>Beef cattle feedlots.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0213</ENT> <ENT>3</ENT> <ENT>Hogs.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>024</ENT> <ENT/> <ENT>3</ENT> <ENT>Dairy farms.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0241</ENT> <ENT>3</ENT> <ENT>Dairy farms.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>025</ENT> <ENT/> <ENT>3</ENT> <ENT>Poultry and eggs.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0251</ENT> <ENT>3</ENT> <ENT>Broiler, fryer, and roaster chickens.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0252</ENT> <ENT>3</ENT> <ENT>Chicken eggs.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0254</ENT> <ENT>2</ENT> <ENT>Poultry hatcheries.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>027</ENT> <ENT/> <ENT>3</ENT> <ENT>Animal specialties.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0271</ENT> <ENT>3</ENT> <ENT>Fur-bearing animals and rabbits.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0272</ENT> <ENT>2</ENT> <ENT>Horse and other equines.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0273</ENT> <ENT>3</ENT> <ENT>Animal aquaculture.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0279</ENT> <ENT>3</ENT> <ENT>Animal specialties, not else where classified.</ENT> </ROW> <ROW> <ENT I="01">07</ENT> <ENT/> <ENT/> <ENT>3</ENT> <ENT>Agricultural services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>072</ENT> <ENT/> <ENT>3</ENT> <ENT>Crop services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0723</ENT> <ENT>3</ENT> <ENT>Crop preparation services for market, except cotton ginning.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>074</ENT> <ENT/> <ENT>2</ENT> <ENT>Veterinary services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>075</ENT> <ENT/> <ENT>a</ENT> <ENT>Animal services except veterinary.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>0751</ENT> <ENT>a</ENT> <ENT>Livestock services, except veterinary.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>078</ENT> <ENT/> <ENT>3</ENT> <ENT>Landscape and horticultural services.</ENT> </ROW> <ROW> <ENT I="01">14</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Mining and quarrying of nonmetallic minerals, except fuels.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1422</ENT> <ENT>2</ENT> <ENT>Crushed and broken limestone.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1429</ENT> <ENT>1</ENT> <ENT>Crushed and broken stone, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>144</ENT> <ENT/> <ENT>1</ENT> <ENT>Sand and gravel.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1442</ENT> <ENT>1</ENT> <ENT>Construction sand and gravel.</ENT> </ROW> <ROW> <ENT I="01">15</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Building construction-general contractors and operative builders.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>152</ENT> <ENT/> <ENT>1</ENT> <ENT>General building contractors-residential buildings.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>154</ENT> <ENT/> <ENT>1</ENT> <ENT>General building contractors-nonresidential buildings.</ENT> </ROW> <ROW> <ENT I="01">16</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Heavy construction other than building construction-contractors.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>161</ENT> <ENT/> <ENT>1</ENT> <ENT>Highway and street construction, except elevated highways.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1611</ENT> <ENT>1</ENT> <ENT>Highway and street construction, except elevated highways.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>162</ENT> <ENT/> <ENT>1</ENT> <ENT>Heavy construction, except highway and street construction.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1622</ENT> <ENT>1</ENT> <ENT>Bridge, tunnel, and elevated highway construction.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1623</ENT> <ENT>1</ENT> <ENT>Water, sewer, pipeline, and communications and power line construction.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1629</ENT> <ENT>a</ENT> <ENT>Heavy construction, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">17</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Construction-special trade contractors.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>171</ENT> <ENT/> <ENT>1</ENT> <ENT>Plumbing, heating and air-conditioning.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1711</ENT> <ENT>1</ENT> <ENT>Plumbing, heating and air-conditioning.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>172</ENT> <ENT/> <ENT>2</ENT> <ENT>Painting and paper hanging.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1721</ENT> <ENT>2</ENT> <ENT>Painting and paper hanging.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>173</ENT> <ENT/> <ENT>1</ENT> <ENT>Electrical work.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1731</ENT> <ENT>1</ENT> <ENT>Electrical work.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>174</ENT> <ENT/> <ENT>1</ENT> <ENT>Masonry, stonework, tile setting, and plastering.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1741</ENT> <ENT>1</ENT> <ENT>Masonry, stone setting, and other stone work.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1742</ENT> <ENT>1</ENT> <ENT>Plastering, drywall, acoustical, and insulation work.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1743</ENT> <ENT>1</ENT> <ENT>Terrazzo, tile, marble, and mosaic work.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>175</ENT> <ENT/> <ENT>a</ENT> <ENT>Carpentry and floor work.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1751</ENT> <ENT>a</ENT> <ENT>Carpentry work.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>176</ENT> <ENT/> <ENT>2</ENT> <ENT>Roofing, siding, and sheet metal work.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1761</ENT> <ENT>2</ENT> <ENT>Roofing, siding, and sheet metal work.</ENT> </ROW> <ROW> <PRTPAGE P="104"/> <ENT I="22"/> <ENT>179</ENT> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous special trade contractors.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1791</ENT> <ENT>1</ENT> <ENT>Structural steel erection.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1793</ENT> <ENT>2</ENT> <ENT>Glass and glazing work.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1794</ENT> <ENT>a</ENT> <ENT>Excavation work.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1795</ENT> <ENT>a</ENT> <ENT>Wrecking and demolition work.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1796</ENT> <ENT>1</ENT> <ENT>Installation or erection of building equipment, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1799</ENT> <ENT>1</ENT> <ENT>Special trade contractors, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">41</ENT> <ENT/> <ENT/> <ENT>3</ENT> <ENT>Local and suburban transit and interurban highway passenger transportation.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>411</ENT> <ENT/> <ENT>2</ENT> <ENT>Local and suburban passenger transportation.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4111</ENT> <ENT>2</ENT> <ENT>Local and suburban transit.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>412</ENT> <ENT/> <ENT>3</ENT> <ENT>Taxicabs.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4121</ENT> <ENT>3</ENT> <ENT>Taxicabs.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>413</ENT> <ENT/> <ENT>3</ENT> <ENT>Intercity and rural bus transportation.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4131</ENT> <ENT>3</ENT> <ENT>Intercity and rural bus transportation.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>415</ENT> <ENT/> <ENT>a</ENT> <ENT>School buses.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4151</ENT> <ENT>a</ENT> <ENT>School buses.</ENT> </ROW> <ROW> <ENT I="01">42</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Motor freight transportation and warehousing.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>421</ENT> <ENT/> <ENT>1</ENT> <ENT>Trucking and courier services, except air.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>422</ENT> <ENT/> <ENT>1</ENT> <ENT>Public warehousing and storage.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4221</ENT> <ENT>1</ENT> <ENT>Farm product warehousing and storage.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4222</ENT> <ENT>a</ENT> <ENT>Refrigerated warehousing and storage.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4225</ENT> <ENT>1</ENT> <ENT>General warehousing and storage.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4226</ENT> <ENT>1</ENT> <ENT>Special warehousing and storage, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">44</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Water transportation.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>442</ENT> <ENT/> <ENT>a</ENT> <ENT>Deep sea domestic transportation of freight.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4424</ENT> <ENT>a</ENT> <ENT>Deep sea domestic transportation of freight.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>444</ENT> <ENT/> <ENT>1</ENT> <ENT>Water transportation of freight, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4449</ENT> <ENT>1</ENT> <ENT>Water transportation of freight, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>449</ENT> <ENT/> <ENT>1</ENT> <ENT>Services incidental to water transportation.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4491</ENT> <ENT>1</ENT> <ENT>Marine cargo handling.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4492</ENT> <ENT>a</ENT> <ENT>Towing and tugboat services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4499</ENT> <ENT>1</ENT> <ENT>Water transportation services, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">45</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Transportation by air.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>451</ENT> <ENT/> <ENT>1</ENT> <ENT>Air transportation, scheduled, and air courier services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4512</ENT> <ENT>1</ENT> <ENT>Air transportation, scheduled.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>452</ENT> <ENT/> <ENT>a</ENT> <ENT>Air transportation, nonscheduled.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4522</ENT> <ENT>a</ENT> <ENT>Air transportation, nonscheduled.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>458</ENT> <ENT/> <ENT>a</ENT> <ENT>Airports, flying fields, and airport terminal services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4581</ENT> <ENT>a</ENT> <ENT>Airports, flying fields, and airport terminal services.</ENT> </ROW> <ROW> <ENT I="01">46</ENT> <ENT/> <ENT/> <ENT>a</ENT> <ENT>Pipelines, except natural gas.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>461</ENT> <ENT/> <ENT>1</ENT> <ENT>Pipelines, except natural gas.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4613</ENT> <ENT>1</ENT> <ENT>Refined petroleum pipelines.</ENT> </ROW> <ROW> <ENT I="01">47</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Transportation services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>472</ENT> <ENT/> <ENT>1</ENT> <ENT>Arrangement of passenger transportation.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4729</ENT> <ENT>1</ENT> <ENT>Arrangement of passenger transportation, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>473</ENT> <ENT/> <ENT>1</ENT> <ENT>Arrangement of transportation of freight and cargo.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4731</ENT> <ENT>1</ENT> <ENT>Arrangement of transportation of freight and cargo.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>478</ENT> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous services incidental to transportation.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4785</ENT> <ENT>1</ENT> <ENT>Fixed facilities and inspection and weighing services for motor vehicle transportation.</ENT> </ROW> <ROW> <ENT I="01">48</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Communications.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>482</ENT> <ENT/> <ENT>b</ENT> <ENT>Telegraph and other message communications.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4822</ENT> <ENT>b</ENT> <ENT>Telegraph and other message communications.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>483</ENT> <ENT/> <ENT>1</ENT> <ENT>Radio and television broadcasting stations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4832</ENT> <ENT>1</ENT> <ENT>Radio broadcasting stations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4833</ENT> <ENT>1</ENT> <ENT>Television broadcasting stations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>489</ENT> <ENT/> <ENT>3</ENT> <ENT>Communications services, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4899</ENT> <ENT>3</ENT> <ENT>Communications services, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">49</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Electric, gas and sanitary services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>492</ENT> <ENT/> <ENT>1</ENT> <ENT>Gas production and distribution.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4923</ENT> <ENT>1</ENT> <ENT>Natural gas transmission and distribution.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4925</ENT> <ENT>1</ENT> <ENT>Mixed, manufactured, or liquefied petroleum gas production and/or distribution.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>495</ENT> <ENT/> <ENT>1</ENT> <ENT>Sanitary services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4953</ENT> <ENT>1</ENT> <ENT>Refuse systems.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>497</ENT> <ENT/> <ENT>a</ENT> <ENT>Irrigation systems.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>4971</ENT> <ENT>a</ENT> <ENT>Irrigation systems.</ENT> </ROW> <ROW> <ENT I="01">50</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Wholesale trade-durable goods.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>501</ENT> <ENT/> <ENT>1</ENT> <ENT>Motor vehicles and motor vehicle parts and supplies.</ENT> </ROW> <ROW> <PRTPAGE P="105"/> <ENT I="22"/> <ENT/> <ENT>5012</ENT> <ENT>a</ENT> <ENT>Automobiles and other motor vehicles.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5013</ENT> <ENT>1</ENT> <ENT>Motor vehicle supplies and new parts.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5014</ENT> <ENT>1</ENT> <ENT>Tires and tubes.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>502</ENT> <ENT/> <ENT>1</ENT> <ENT>Furniture and homefurnishings.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5021</ENT> <ENT>2</ENT> <ENT>Furniture.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5023</ENT> <ENT>1</ENT> <ENT>Homefurnishings.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>503</ENT> <ENT/> <ENT>2</ENT> <ENT>Lumber and other construction materials.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5031</ENT> <ENT>2</ENT> <ENT>Lumber, plywood, millwork, and wood panels.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5039</ENT> <ENT>1</ENT> <ENT>Construction materials, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>504</ENT> <ENT/> <ENT>1</ENT> <ENT>Professional and commercial equipment and supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5043</ENT> <ENT>1</ENT> <ENT>Photographic equipment and supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5046</ENT> <ENT>1</ENT> <ENT>Commercial equipment, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5049</ENT> <ENT>1</ENT> <ENT>Professional equipment and supplies, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>505</ENT> <ENT/> <ENT>1</ENT> <ENT>Metals and minerals, except petroleum.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5051</ENT> <ENT>1</ENT> <ENT>Metals service centers and offices.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>506</ENT> <ENT/> <ENT>1</ENT> <ENT>Electrical goods.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5063</ENT> <ENT>1</ENT> <ENT>Electrical apparatus and equipment, wiring supplies and construction materials.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5064</ENT> <ENT>1</ENT> <ENT>Electrical appliances, television and radio sets.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5065</ENT> <ENT>1</ENT> <ENT>Electronic parts and equipment, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>507</ENT> <ENT/> <ENT>1</ENT> <ENT>Hardware, and plumbing and heating equipment and supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5072</ENT> <ENT>1</ENT> <ENT>Hardware.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5074</ENT> <ENT>1</ENT> <ENT>Plumbing and heating equipment and supplies (hydronics).</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5075</ENT> <ENT>a</ENT> <ENT>Warm air heating and air-conditioning equipment and supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5078</ENT> <ENT>a</ENT> <ENT>Refrigeration equipment and supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>508</ENT> <ENT/> <ENT>1</ENT> <ENT>Machinery, equipment, and supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5082</ENT> <ENT>1</ENT> <ENT>Construction and mining (except petroleum) machinery and equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5083</ENT> <ENT>a</ENT> <ENT>Farm and garden machinery and equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5084</ENT> <ENT>1</ENT> <ENT>Industrial machinery and equipment.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5085</ENT> <ENT>1</ENT> <ENT>Industrial supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5087</ENT> <ENT>2</ENT> <ENT>Service establishment equipment and supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>509</ENT> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous durable goods.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5091</ENT> <ENT>a</ENT> <ENT>Sporting and recreational goods and supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5092</ENT> <ENT>1</ENT> <ENT>Toys and hobby goods and supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5093</ENT> <ENT>1</ENT> <ENT>Scrap and waste materials.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5094</ENT> <ENT>1</ENT> <ENT>Jewelry, watches, precious stones, and precious metals.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5099</ENT> <ENT>1</ENT> <ENT>Durable goods, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">51</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Wholesale trade—nondurable goods.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>511</ENT> <ENT/> <ENT>1</ENT> <ENT>Paper and paper products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5111</ENT> <ENT>1</ENT> <ENT>Printing and writing paper.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5112</ENT> <ENT>3</ENT> <ENT>Stationery and office supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5113</ENT> <ENT>1</ENT> <ENT>Industrial and personal service paper.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>512</ENT> <ENT/> <ENT>1</ENT> <ENT>Drugs, drug proprietaries, and druggists' sundries.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5122</ENT> <ENT>1</ENT> <ENT>Drugs, drug proprietaries, and druggists' sundries.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>513</ENT> <ENT/> <ENT>2</ENT> <ENT>Apparel, piece goods, and notions.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5131</ENT> <ENT>2</ENT> <ENT>Piece goods, notions, and other dry goods.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5136</ENT> <ENT>1</ENT> <ENT>Men's and boys' clothing and furnishings.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5137</ENT> <ENT>3</ENT> <ENT>Women's, children's, and infants' clothing and accessories.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5139</ENT> <ENT>2</ENT> <ENT>Footwear.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>514</ENT> <ENT/> <ENT>1</ENT> <ENT>Groceries and related products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5141</ENT> <ENT>1</ENT> <ENT>Groceries, general line.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5142</ENT> <ENT>1</ENT> <ENT>Packaged frozen foods.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5143</ENT> <ENT>a</ENT> <ENT>Dairy products, except dried or canned.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5144</ENT> <ENT>3</ENT> <ENT>Poultry and poultry products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5145</ENT> <ENT>a</ENT> <ENT>Confectionery.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5146</ENT> <ENT>a</ENT> <ENT>Fish and seafoods.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5147</ENT> <ENT>a</ENT> <ENT>Meats and meat products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5148</ENT> <ENT>1</ENT> <ENT>Fresh fruits and vegetables.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5149</ENT> <ENT>1</ENT> <ENT>Groceries and related products, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>515</ENT> <ENT/> <ENT>a</ENT> <ENT>Farm-product raw materials.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5154</ENT> <ENT>a</ENT> <ENT>Livestock.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>516</ENT> <ENT/> <ENT>1</ENT> <ENT>Chemicals and allied products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5169</ENT> <ENT>1</ENT> <ENT>Chemicals and allied products, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>517</ENT> <ENT/> <ENT>1</ENT> <ENT>Petroleum and petroleum products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5171</ENT> <ENT>1</ENT> <ENT>Petroleum bulk stations and terminals.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5172</ENT> <ENT>1</ENT> <ENT>Petroleum and petroleum products wholesalers, except bulk stations and terminals.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>518</ENT> <ENT/> <ENT>1</ENT> <ENT>Beer, wine and distilled alcoholic beverages.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5181</ENT> <ENT>1</ENT> <ENT>Beer and ale.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>519</ENT> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous nondurable goods.</ENT> </ROW> <ROW> <PRTPAGE P="106"/> <ENT I="22"/> <ENT/> <ENT>5191</ENT> <ENT>3</ENT> <ENT>Farm supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5194</ENT> <ENT>3</ENT> <ENT>Tobacco and tobacco products.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5198</ENT> <ENT>b</ENT> <ENT>Paints, varnishes, and supplies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5199</ENT> <ENT>1</ENT> <ENT>Nondurable goods, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">52</ENT> <ENT/> <ENT/> <ENT>2</ENT> <ENT>Building materials, hardware, garden supply, and mobile home dealers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>521</ENT> <ENT/> <ENT>3</ENT> <ENT>Lumber and other building materials dealers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5211</ENT> <ENT>3</ENT> <ENT>Lumber and other building materials dealers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>523</ENT> <ENT/> <ENT>1</ENT> <ENT>Paint, glass, and wallpaper stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5231</ENT> <ENT>1</ENT> <ENT>Paint, glass, and wallpaper stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>525</ENT> <ENT/> <ENT>2</ENT> <ENT>Hardware stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5251</ENT> <ENT>2</ENT> <ENT>Hardware stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>526</ENT> <ENT/> <ENT>3</ENT> <ENT>Retail nurseries, lawn and garden supply stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5261</ENT> <ENT>3</ENT> <ENT>Retail nurseries, lawn and garden supply stores.</ENT> </ROW> <ROW> <ENT I="01">53</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>General merchandise stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>531</ENT> <ENT/> <ENT>1</ENT> <ENT>Department stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5311</ENT> <ENT>1</ENT> <ENT>Department stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>533</ENT> <ENT/> <ENT>2</ENT> <ENT>Variety stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5331</ENT> <ENT>2</ENT> <ENT>Variety stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>539</ENT> <ENT/> <ENT>3</ENT> <ENT>Miscellaneous general merchandise stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5399</ENT> <ENT>3</ENT> <ENT>Miscellaneous general merchandise stores.</ENT> </ROW> <ROW> <ENT I="01">54</ENT> <ENT/> <ENT/> <ENT>2</ENT> <ENT>Food stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>541</ENT> <ENT/> <ENT>2</ENT> <ENT>Grocery stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5411</ENT> <ENT>2</ENT> <ENT>Grocery stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>542</ENT> <ENT/> <ENT>1</ENT> <ENT>Meat and fish (seafood) markets, including freezer provisioners.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5421</ENT> <ENT>1</ENT> <ENT>Meat and fish (seafood) markets, including freezer provisioners.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5421</ENT> <ENT>a</ENT> <ENT>Meat and fish (seafood) markets, including freezer provisioners.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>543</ENT> <ENT/> <ENT>3</ENT> <ENT>Fruit and vegetable markets.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5431</ENT> <ENT>3</ENT> <ENT>Fruit and vegetable markets.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>546</ENT> <ENT/> <ENT>3</ENT> <ENT>Retail bakeries.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5461</ENT> <ENT>3</ENT> <ENT>Retail bakeries.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>549</ENT> <ENT/> <ENT>3</ENT> <ENT>Miscellaneous food stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5499</ENT> <ENT>3</ENT> <ENT>Miscellaneous food stores.</ENT> </ROW> <ROW> <ENT I="01">55</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Automotive dealers and gasoline service stations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>551</ENT> <ENT/> <ENT>1</ENT> <ENT>Motor vehicle dealers (new and used).</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5511</ENT> <ENT>1</ENT> <ENT>Motor vehicle dealers (new and used).</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>552</ENT> <ENT/> <ENT>2</ENT> <ENT>Motor vehicle dealers (used only).</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5521</ENT> <ENT>2</ENT> <ENT>Motor vehicle dealers (used only).</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>553</ENT> <ENT/> <ENT>1</ENT> <ENT>Auto and home supply stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5531</ENT> <ENT>1</ENT> <ENT>Auto and home supply stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>554</ENT> <ENT/> <ENT>3</ENT> <ENT>Gasoline service stations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5541</ENT> <ENT>3</ENT> <ENT>Gasoline service stations.</ENT> </ROW> <ROW> <ENT I="01">56</ENT> <ENT/> <ENT/> <ENT>3</ENT> <ENT>Apparel and accessory stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>561</ENT> <ENT/> <ENT>3</ENT> <ENT>Men's and boys' clothing and accessory stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5611</ENT> <ENT>3</ENT> <ENT>Men's and boys' clothing and accessory stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>562</ENT> <ENT/> <ENT>3</ENT> <ENT>Women's clothing stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5621</ENT> <ENT>3</ENT> <ENT>Women's clothing stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>563</ENT> <ENT/> <ENT>3</ENT> <ENT>Women's accessory and specialty stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5632</ENT> <ENT>3</ENT> <ENT>Women's accessory and specialty stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>564</ENT> <ENT/> <ENT>3</ENT> <ENT>Children's and infants' wear stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5641</ENT> <ENT>3</ENT> <ENT>Children's and infants' wear stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>565</ENT> <ENT/> <ENT>3</ENT> <ENT>Family clothing stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5651</ENT> <ENT>3</ENT> <ENT>Family clothing stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>566</ENT> <ENT/> <ENT>2</ENT> <ENT>Shoe stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5661</ENT> <ENT>2</ENT> <ENT>Shoe stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>569</ENT> <ENT/> <ENT>3</ENT> <ENT>Miscellaneous apparel and accessory stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5699</ENT> <ENT>3</ENT> <ENT>Miscellaneous apparel and accessory stores.</ENT> </ROW> <ROW> <ENT I="01">57</ENT> <ENT/> <ENT/> <ENT>2</ENT> <ENT>Home furniture, furnishings, and equipment stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>571</ENT> <ENT/> <ENT>2</ENT> <ENT>Home furniture and furnishings stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5712</ENT> <ENT>2</ENT> <ENT>Furniture stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5713</ENT> <ENT>a</ENT> <ENT>Floor covering stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5714</ENT> <ENT>3</ENT> <ENT>Drapery, curtain, and upholstery stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5719</ENT> <ENT>1</ENT> <ENT>Miscellaneous homefurnishings stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>572</ENT> <ENT/> <ENT>1</ENT> <ENT>Household appliance stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5722</ENT> <ENT>1</ENT> <ENT>Household appliance stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>573</ENT> <ENT/> <ENT>2</ENT> <ENT>Radio, television, consumer electronics, and music stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5731</ENT> <ENT>a</ENT> <ENT>Radio, television, and consumer electronics stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5735</ENT> <ENT>1</ENT> <ENT>Record and prerecorded tape stores.</ENT> </ROW> <ROW> <ENT I="01">58</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Eating and drinking places.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT> <SU>1</SU> 581</ENT> <ENT/> <ENT>1</ENT> <ENT>Eating and drinking places.</ENT> </ROW> <ROW> <ENT I="01">59</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous retail.</ENT> </ROW> <ROW> <PRTPAGE P="107"/> <ENT I="22"/> <ENT>591</ENT> <ENT/> <ENT>1</ENT> <ENT>Drug stores and proprietary stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5912</ENT> <ENT>1</ENT> <ENT>Drug stores and proprietary stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>592</ENT> <ENT/> <ENT>a</ENT> <ENT>Liquor stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5921</ENT> <ENT>a</ENT> <ENT>Liquor stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>593</ENT> <ENT/> <ENT>3</ENT> <ENT>Used merchandise stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5932</ENT> <ENT>3</ENT> <ENT>Used merchandise stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>594</ENT> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous shopping goods stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5941</ENT> <ENT>1</ENT> <ENT>Sporting goods stores and bicycle shops.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5942</ENT> <ENT>1</ENT> <ENT>Book stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5943</ENT> <ENT>2</ENT> <ENT>Stationery stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5944</ENT> <ENT>1</ENT> <ENT>Jewelry stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5945</ENT> <ENT>3</ENT> <ENT>Hobby, toy, and game shops.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5946</ENT> <ENT>2</ENT> <ENT>Camera and photographic supply stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5947</ENT> <ENT>3</ENT> <ENT>Gift, novelty, and souvenir shops.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5949</ENT> <ENT>3</ENT> <ENT>Sewing, needlework, and piece goods stores.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>596</ENT> <ENT/> <ENT>a</ENT> <ENT>Nonstore retailers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5962</ENT> <ENT>a</ENT> <ENT>Automatic merchandising machine operators.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5963</ENT> <ENT>a</ENT> <ENT>Direct selling establishments.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>598</ENT> <ENT/> <ENT>2</ENT> <ENT>Fuel dealers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5984</ENT> <ENT>2</ENT> <ENT>Liquefied petroleum gas (bottled gas) dealers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>599</ENT> <ENT/> <ENT>1</ENT> <ENT>Retail stores, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5992</ENT> <ENT>3</ENT> <ENT>Florists.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>5999</ENT> <ENT>1</ENT> <ENT>Miscellaneous retail stores, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">60</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Depository institutions.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>602</ENT> <ENT/> <ENT>1</ENT> <ENT>Commercial banks.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6021</ENT> <ENT>1</ENT> <ENT>National commercial banks.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6022</ENT> <ENT>1</ENT> <ENT>State commercial banks.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6029</ENT> <ENT>1</ENT> <ENT>Commercial banks, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>603</ENT> <ENT/> <ENT>1</ENT> <ENT>Savings institutions.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6035</ENT> <ENT>1</ENT> <ENT>Savings institutions, Federally chartered.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6036</ENT> <ENT>1</ENT> <ENT>Savings institutions, not Federally chartered.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>606</ENT> <ENT/> <ENT>1</ENT> <ENT>Credit unions.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6061</ENT> <ENT>1</ENT> <ENT>Credit unions, Federally chartered.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6062</ENT> <ENT>1</ENT> <ENT>Credit unions, not Federally chartered.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>609</ENT> <ENT/> <ENT>2</ENT> <ENT>Functions related to depository banking.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6099</ENT> <ENT>2</ENT> <ENT>Functions related to depository banking, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">61</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Nondepository credit institutions.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>614</ENT> <ENT/> <ENT>1</ENT> <ENT>Personal credit institutions.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6141</ENT> <ENT>1</ENT> <ENT>Personal credit institutions.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>615</ENT> <ENT/> <ENT>1</ENT> <ENT>Business credit institutions.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6153</ENT> <ENT>b</ENT> <ENT>Short-term business credit institutions, except agricultural.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6159</ENT> <ENT>1</ENT> <ENT>Miscellaneous business credit institutions.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>616</ENT> <ENT/> <ENT>1</ENT> <ENT>Mortgage bankers and brokers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6162</ENT> <ENT>1</ENT> <ENT>Mortgage bankers and loan correspondents.</ENT> </ROW> <ROW> <ENT I="01">62</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Security and commodity brokers, dealers, exchanges, and services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>621</ENT> <ENT/> <ENT>1</ENT> <ENT>Security brokers, dealers, and flotation companies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6211</ENT> <ENT>1</ENT> <ENT>Security brokers, dealers, and flotation companies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>622</ENT> <ENT/> <ENT>a</ENT> <ENT>Commodity contracts brokers and dealers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6221</ENT> <ENT>a</ENT> <ENT>Commodity contracts brokers and dealers.</ENT> </ROW> <ROW> <ENT I="01">63</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Insurance carriers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>631</ENT> <ENT/> <ENT>1</ENT> <ENT>Life insurance.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6311</ENT> <ENT>1</ENT> <ENT>Life insurance.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>632</ENT> <ENT/> <ENT>1</ENT> <ENT>Accidental and health insurance and medical service plans.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6321</ENT> <ENT>1</ENT> <ENT>Accident and health insurance.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6324</ENT> <ENT>b</ENT> <ENT>Hospital and medical service plans.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>633</ENT> <ENT/> <ENT>1</ENT> <ENT>Fire, marine, and casualty insurance.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6331</ENT> <ENT>1</ENT> <ENT>Fire, marine, and casualty insurance.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>635</ENT> <ENT/> <ENT>1</ENT> <ENT>Surety insurance.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6351</ENT> <ENT>1</ENT> <ENT>Surety insurance.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>636</ENT> <ENT/> <ENT>b</ENT> <ENT>Title insurance.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6361</ENT> <ENT>b</ENT> <ENT>Title insurance.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>637</ENT> <ENT/> <ENT>1</ENT> <ENT>Pension, health, and welfare funds.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6371</ENT> <ENT>1</ENT> <ENT>Pension, health, and welfare funds.</ENT> </ROW> <ROW> <ENT I="01">64</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Insurance agents, brokers, and service.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>641</ENT> <ENT/> <ENT>1</ENT> <ENT>Insurance agents, brokers, and service.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6411</ENT> <ENT>1</ENT> <ENT>Insurance agents, brokers, and service.</ENT> </ROW> <ROW> <ENT I="01">65</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Real estate.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>651</ENT> <ENT/> <ENT>1</ENT> <ENT>Real estate operators (except developers) and lessors.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>653</ENT> <ENT/> <ENT>1</ENT> <ENT>Real estate agents and managers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6531</ENT> <ENT>1</ENT> <ENT>Real estate agents and managers.</ENT> </ROW> <ROW> <PRTPAGE P="108"/> <ENT I="22"/> <ENT>655</ENT> <ENT/> <ENT>1</ENT> <ENT>Land subdividers and developers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6552</ENT> <ENT>1</ENT> <ENT>Land subdividers and developers, except cemeteries.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>6553</ENT> <ENT>a</ENT> <ENT>Cemetery subdividers and developers.</ENT> </ROW> <ROW> <ENT I="01">70</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Hotels, rooming houses, camps, and other lodging places.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>701</ENT> <ENT/> <ENT>1</ENT> <ENT>Hotels and motels.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7011</ENT> <ENT>1</ENT> <ENT>Hotels and motels.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>702</ENT> <ENT/> <ENT>1</ENT> <ENT>Rooming and boarding houses.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7021</ENT> <ENT>1</ENT> <ENT>Rooming and boarding houses.</ENT> </ROW> <ROW> <ENT I="01">72</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Personal services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>721</ENT> <ENT/> <ENT>2</ENT> <ENT>Laundry, cleaning, and garment services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>722</ENT> <ENT/> <ENT>3</ENT> <ENT>Photographic studios, portrait.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7221</ENT> <ENT>3</ENT> <ENT>Photographic studios, portrait.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>723</ENT> <ENT/> <ENT>1</ENT> <ENT>Beauty shops.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7231</ENT> <ENT>1</ENT> <ENT>Beauty shops.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>724</ENT> <ENT/> <ENT>1</ENT> <ENT>Barber shops</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7241</ENT> <ENT>1</ENT> <ENT>Barber shops.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>725</ENT> <ENT/> <ENT>2</ENT> <ENT>Shoe repair shops and shoeshine parlors.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7251</ENT> <ENT>2</ENT> <ENT>Shoe repair shops and shoeshine parlors.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>726</ENT> <ENT/> <ENT>1</ENT> <ENT>Funeral service and crematories.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7261</ENT> <ENT>1</ENT> <ENT>Funeral service and crematories.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>729</ENT> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous personal services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7299</ENT> <ENT>1</ENT> <ENT>Miscellaneous personal services, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">73</ENT> <ENT/> <ENT/> <ENT>2</ENT> <ENT>Business services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>731</ENT> <ENT/> <ENT>1</ENT> <ENT>Advertising.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7311</ENT> <ENT>1</ENT> <ENT>Advertising agencies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7312</ENT> <ENT>1</ENT> <ENT>Outdoor advertising services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7319</ENT> <ENT>a</ENT> <ENT>Advertising, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>732</ENT> <ENT/> <ENT>b</ENT> <ENT>Consumer credit reporting agencies, mercantile reporting agencies, and adjustment and collection agencies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7323</ENT> <ENT>b</ENT> <ENT>Credit reporting services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>733</ENT> <ENT/> <ENT>2</ENT> <ENT>Mailing, reproduction, commercial art and photography, and stenographic services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7338</ENT> <ENT>2</ENT> <ENT>Secretarial and court reporting services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>734</ENT> <ENT/> <ENT>3</ENT> <ENT>Services to dwellings and other buildings.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7342</ENT> <ENT>3</ENT> <ENT>Disinfecting and pest control services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7349</ENT> <ENT>3</ENT> <ENT>Building cleaning and maintenance services, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>735</ENT> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous equipment rental and leasing.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7359</ENT> <ENT>1</ENT> <ENT>Equipment rental and leasing, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>736</ENT> <ENT/> <ENT>2</ENT> <ENT>Personnel supply services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7361</ENT> <ENT>2</ENT> <ENT>Employment agencies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7363</ENT> <ENT>2</ENT> <ENT>Help supply services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>737</ENT> <ENT/> <ENT>1</ENT> <ENT>Computer programming, data processing, and other computer related services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7372</ENT> <ENT>1</ENT> <ENT>Prepackaged software.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7374</ENT> <ENT>1</ENT> <ENT>Computer processing and data preparation and processing services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7379</ENT> <ENT>1</ENT> <ENT>Computer related services, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>738</ENT> <ENT/> <ENT>3</ENT> <ENT>Miscellaneous business services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7382</ENT> <ENT>3</ENT> <ENT>Security systems services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7384</ENT> <ENT>1</ENT> <ENT>Photofinishing laboratories.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7389</ENT> <ENT>1</ENT> <ENT>Business services, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">75</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Automotive repair, services, and parking.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>751</ENT> <ENT/> <ENT>1</ENT> <ENT>Automotive rental and leasing, without drivers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7513</ENT> <ENT>3</ENT> <ENT>Truck rental and leasing, without drivers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7514</ENT> <ENT>1</ENT> <ENT>Passenger car rental.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>752</ENT> <ENT/> <ENT>3</ENT> <ENT>Automobile parking.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7521</ENT> <ENT>3</ENT> <ENT>Automobile parking.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>753</ENT> <ENT/> <ENT>1</ENT> <ENT>Automotive repair shops.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7532</ENT> <ENT>2</ENT> <ENT>Top, body, and upholstery repair shops and paint shops.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7534</ENT> <ENT>1</ENT> <ENT>Tire retreading and repair shops.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7538</ENT> <ENT>3</ENT> <ENT>General automotive repair shops.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7539</ENT> <ENT>2</ENT> <ENT>Automotive repair shops, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>754</ENT> <ENT/> <ENT>3</ENT> <ENT>Automotive services, except repair.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7542</ENT> <ENT>3</ENT> <ENT>Carwashes.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7549</ENT> <ENT>3</ENT> <ENT>Automotive services, except repair and carwashes.</ENT> </ROW> <ROW> <ENT I="01">76</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous repair services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>762</ENT> <ENT/> <ENT>1</ENT> <ENT>Electrical repair shops.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7622</ENT> <ENT>3</ENT> <ENT>Radio and television repair shops.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7623</ENT> <ENT>1</ENT> <ENT>Refrigeration and air-conditioning service and repair shops.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7629</ENT> <ENT>1</ENT> <ENT>Electrical and electronic repair shops, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>763</ENT> <ENT/> <ENT>2</ENT> <ENT>Watch, clock, and jewelry repair.</ENT> </ROW> <ROW> <PRTPAGE P="109"/> <ENT I="22"/> <ENT/> <ENT>7631</ENT> <ENT>2</ENT> <ENT>Watch, clock, and jewelry repair.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>764</ENT> <ENT/> <ENT>3</ENT> <ENT>Reupholstery and furniture repair.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7641</ENT> <ENT>3</ENT> <ENT>Reupholstery and furniture repair.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>769</ENT> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous repair shops and related services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7692</ENT> <ENT>2</ENT> <ENT>Welding repair.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7694</ENT> <ENT>1</ENT> <ENT>Armature rewinding shops.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7699</ENT> <ENT>1</ENT> <ENT>Repair shops and related services, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">78</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Motion pictures.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>781</ENT> <ENT/> <ENT>1</ENT> <ENT>Motion picture production and allied services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7812</ENT> <ENT>1</ENT> <ENT>Motion picture and video tape production.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>782</ENT> <ENT/> <ENT>2</ENT> <ENT>Motion picture distribution and allied services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7822</ENT> <ENT>2</ENT> <ENT>Motion picture and video tape distribution.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>783</ENT> <ENT/> <ENT>3</ENT> <ENT>Motion picture theaters.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7832</ENT> <ENT>3</ENT> <ENT>Motion picture theaters, except drive-in.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7833</ENT> <ENT>a</ENT> <ENT>Drive-in motion picture theaters.</ENT> </ROW> <ROW> <ENT I="01">79</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Amusement and recreation services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>791</ENT> <ENT/> <ENT>2</ENT> <ENT>Dance studios, schools, and halls.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7911</ENT> <ENT>2</ENT> <ENT>Dance studios, schools, and halls.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>792</ENT> <ENT/> <ENT>a</ENT> <ENT>Theatrical producers (except motion picture), bands, orchestras, and entertainers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7929</ENT> <ENT>a</ENT> <ENT>Bands, orchestras, actors, and other entertainers and entertainment groups.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>793</ENT> <ENT/> <ENT>3</ENT> <ENT>Bowling centers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7933</ENT> <ENT>3</ENT> <ENT>Bowling centers.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>794</ENT> <ENT/> <ENT>a</ENT> <ENT>Commercial sports.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7941</ENT> <ENT>a</ENT> <ENT>Professional sports clubs and promoters.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7948</ENT> <ENT>a</ENT> <ENT>Racing, including track operation.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>799</ENT> <ENT/> <ENT>2</ENT> <ENT>Miscellaneous amusement and recreation services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7993</ENT> <ENT>2</ENT> <ENT>Coin-operated amusement devices.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7997</ENT> <ENT>1</ENT> <ENT>Membership sports and recreation clubs.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>7999</ENT> <ENT>2</ENT> <ENT>Amusement and recreation services not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">80</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Health services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>801</ENT> <ENT/> <ENT>1</ENT> <ENT>Offices and clinics of doctors of medicine.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8011</ENT> <ENT>1</ENT> <ENT>Offices and clinics of doctors of medicine.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>802</ENT> <ENT/> <ENT>1</ENT> <ENT>Offices and clinics of dentists.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8021</ENT> <ENT>1</ENT> <ENT>Offices and clinics of dentists.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>803</ENT> <ENT/> <ENT>a</ENT> <ENT>Offices and clinics of doctors of osteopathy.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8031</ENT> <ENT>a</ENT> <ENT>Offices and clinics of doctors of osteopathy.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>804</ENT> <ENT/> <ENT>1</ENT> <ENT>Offices and clinics of other health practitioners.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8049</ENT> <ENT>1</ENT> <ENT>Offices and clinics of health practitioners, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>805</ENT> <ENT/> <ENT>b</ENT> <ENT>Nursing and personal care facilities.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8059</ENT> <ENT>b</ENT> <ENT>Nursing and personal care facilities, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>806</ENT> <ENT/> <ENT>1</ENT> <ENT>Hospitals.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8062</ENT> <ENT>1</ENT> <ENT>General medical and surgical hospitals.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8063</ENT> <ENT>1</ENT> <ENT>Psychiatric hospitals.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8069</ENT> <ENT>1</ENT> <ENT>Specialty hospitals, except psychiatric.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>807</ENT> <ENT/> <ENT>1</ENT> <ENT>Medical and dental laboratories.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8071</ENT> <ENT>1</ENT> <ENT>Medical laboratories.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8072</ENT> <ENT>a</ENT> <ENT>Dental laboratories.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>809</ENT> <ENT/> <ENT>1</ENT> <ENT>Miscellaneous health and allied services, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8099</ENT> <ENT>1</ENT> <ENT>Health and allied services, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">81</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Legal services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>811</ENT> <ENT/> <ENT>1</ENT> <ENT>Legal services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8111</ENT> <ENT>1</ENT> <ENT>Legal services.</ENT> </ROW> <ROW> <ENT I="01">82</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Educational services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>821</ENT> <ENT/> <ENT>2</ENT> <ENT>Elementary and secondary schools.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8211</ENT> <ENT>2</ENT> <ENT>Elementary and secondary schools.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>822</ENT> <ENT/> <ENT>1</ENT> <ENT>Colleges, universities, professional schools, and junior colleges.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8221</ENT> <ENT>1</ENT> <ENT>Colleges, universities, and professional schools.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8222</ENT> <ENT>1</ENT> <ENT>Junior colleges and technical institutes.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>824</ENT> <ENT/> <ENT>2</ENT> <ENT>Vocational schools.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8243</ENT> <ENT>a</ENT> <ENT>Data processing schools.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8244</ENT> <ENT>2</ENT> <ENT>Business and secretarial schools.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8249</ENT> <ENT>2</ENT> <ENT>Vocational schools, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>829</ENT> <ENT/> <ENT>1</ENT> <ENT>Schools and educational services, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8299</ENT> <ENT>1</ENT> <ENT>Schools and educational services, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">83</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Social services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>832</ENT> <ENT/> <ENT>1</ENT> <ENT>Individual and family social services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8322</ENT> <ENT>1</ENT> <ENT>Individual and family social services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>833</ENT> <ENT/> <ENT>3</ENT> <ENT>Job training and vocational rehabilitation services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8331</ENT> <ENT>3</ENT> <ENT>Job training and vocational rehabilitation services.</ENT> </ROW> <ROW> <PRTPAGE P="110"/> <ENT I="22"/> <ENT>835</ENT> <ENT/> <ENT>1</ENT> <ENT>Child day care services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8351</ENT> <ENT>1</ENT> <ENT>Child day care services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>836</ENT> <ENT/> <ENT>2</ENT> <ENT>Residential care.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8361</ENT> <ENT>2</ENT> <ENT>Residential care.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>839</ENT> <ENT/> <ENT>a</ENT> <ENT>Social services, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8399</ENT> <ENT>a</ENT> <ENT>Social services, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">84</ENT> <ENT/> <ENT/> <ENT>3</ENT> <ENT>Museums, art galleries, and botanical and zoological gardens.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>841</ENT> <ENT/> <ENT>3</ENT> <ENT>Museums and art galleries.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8412</ENT> <ENT>3</ENT> <ENT>Museums and art galleries.</ENT> </ROW> <ROW> <ENT I="01">86</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Membership organizations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>861</ENT> <ENT/> <ENT>1</ENT> <ENT>Business associations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8611</ENT> <ENT>1</ENT> <ENT>Business associations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>862</ENT> <ENT/> <ENT>1</ENT> <ENT>Professional membership organizations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8621</ENT> <ENT>1</ENT> <ENT>Professional membership organizations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>863</ENT> <ENT/> <ENT>1</ENT> <ENT>Labor unions and similar labor organizations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8631</ENT> <ENT>1</ENT> <ENT>Labor unions and similar labor organizations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>864</ENT> <ENT/> <ENT>2</ENT> <ENT>Civic, social, and fraternal associations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8641</ENT> <ENT>2</ENT> <ENT>Civic, social, and fraternal associations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>866</ENT> <ENT/> <ENT>2</ENT> <ENT>Religious organizations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8661</ENT> <ENT>2</ENT> <ENT>Religious organizations.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>869</ENT> <ENT/> <ENT>2</ENT> <ENT>Membership organizations, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8699</ENT> <ENT>2</ENT> <ENT>Membership organizations, not elsewhere classified.</ENT> </ROW> <ROW> <ENT I="01">87</ENT> <ENT/> <ENT/> <ENT>1</ENT> <ENT>Engineering, accounting, research, management, and related services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>871</ENT> <ENT/> <ENT>1</ENT> <ENT>Engineering, architectural, and surveying services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8711</ENT> <ENT>1</ENT> <ENT>Engineering services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>872</ENT> <ENT/> <ENT>1</ENT> <ENT>Accounting, auditing, and bookkeeping services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8721</ENT> <ENT>1</ENT> <ENT>Accounting, auditing, and bookkeeping services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>873</ENT> <ENT/> <ENT>1</ENT> <ENT>Research, development, and testing services.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8733</ENT> <ENT>1</ENT> <ENT>Noncommercial research organizations.</ENT> </ROW> <ROW> <ENT I="01">88</ENT> <ENT/> <ENT/> <ENT>3</ENT> <ENT>Private households.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>881</ENT> <ENT/> <ENT>3</ENT> <ENT>Private households.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>8811</ENT> <ENT>3</ENT> <ENT>Private households.</ENT> </ROW> <TNOTE>“a”=Category contained less than three responding employers or one responding employer had more than 80 percent of the employment in the category.</TNOTE> <TNOTE>“b”=Firm(s) declined to furnish waivers in these categories.</TNOTE> <TNOTE> <SU>1</SU> Survey data reported on the basis of SIC code 5810. Data were not broken down by SIC 5812, Eating places, and 5813 Drinking places (Alcoholic beverages).</TNOTE> </GPOTABLE> <CITA>[55 FR 12120, Mar. 30, 1990; 55 FR 12778, Apr. 5, 1990, as amended at 55 FR 39577, Sept. 27, 1990; 55 FR 53248, Dec. 27, 1990; 57 FR 1104, Jan. 10, 1992]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 510, App. C</EAR> <HD SOURCE="HED">Appendix C to Part 510—Government Corporations Eligible for Minimum Wage Phase-In</HD> <P>This appendix contains a listing of the public organizations (corporations) in Puerto Rico for which data have been provided by the Commonwealth for purposes of implementing the 1989 Amendments to FLSA. Such Corporations are subject to Tiers 1, 2, or 3, as set forth below. Corporations which are listed under Tier 3 may pay rates specified under Tier 4 to employees engaged in traditional activities, as defined in § 510.25 of the regulations. All other employees are subject to Tier 3. Organizations for which no data were provided are subject to Tier 1 treatment.</P> <GPOTABLE CDEF="xls24,r20" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1">Tier</CHED> <CHED H="1">Organization</CHED> </BOXHD> <ROW> <ENT I="01">1</ENT> <ENT>Automobile Accidents Compensation Administration.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Cardiovascular Center Corporation of Puerto Rico and the Caribbean.</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>Culebra Conservation and Development Authority.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Government Development Bank of Puerto Rico.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Highway Authority.</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>Industries for the Blind, Mentally Retarded, and other Disabled Persons of Puerto Rico.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Institute of Puerto Rican Culture.</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>Corporation for the Development and Administration of Marine, Lacustrine, and Fluvial Resources of Puerto Rico.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Metropolitan Bus Authority.</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>Puerto Rico Mineral Resource Development Corporation.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Musical Arts Corporation.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Public Building Authority.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Puerto Rico Institute of Cinematographic and Television Arts and Industries.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Puerto Rico Aqueducts and Sewer Authority.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Puerto Rico Communications Authority.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Puerto Rico Land Administration.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Puerto Rico Marine Shipping Authority.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Puerto Rico Medical Service Administration.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Puerto Rico Ports Authority.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Puerto Rico Musical Performing Arts Corporation.</ENT> </ROW> <ROW> <PRTPAGE P="111"/> <ENT I="01">2</ENT> <ENT>Puerto Rico Rural Development Corporation.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Puerto Rico Sugar Board.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Puerto Rico Telephone Company.</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>Puerto Rico Solid Waste Management Authority.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Puerto Rico Housing Bank.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Puerto Rico Tourism Company.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Puerto Rico Renewal and Housing Corporation.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Puerto Rico Industrial Development Bank.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Recreational Development Company.</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>Right to Work Administration.</ENT> </ROW> </GPOTABLE> </APPENDIX> <APPENDIX> <EAR>Pt. 510, App. D</EAR> <HD SOURCE="HED">Appendix D to Part 510—Municipalities Eligible for Minimum Wage Phase-In</HD> <P>This appendix contains a listing of the municipalities in Puerto Rico and the tier applicable to each. Municipalities with average hourly earnings below $4.65 but equal to or greater than $4.00 are subject to Tier 2, as set forth below. Municipalities with average hourly earnings under $4.00 are subject to Tier 3. Municipalities which are listed under Tier 3 may pay the rates specified under Tier 4 to employees engaged in traditional activities, as defined in § 510.25 of the regulations. All other employees are subject to Tier 3. Municipalities which did not submit data are subject to Tier 1. The tiers set forth below are subject to petitions for review by affected employees, if filed prior to June 1, 1990. If upon review it is determined that the municipality should have been subject to Tier 1 or 2, back wages will have to be paid to April 1, 1990, to make up the difference between what municipal employees were paid and what they should have been paid.</P> <GPOTABLE CDEF="xls24,r20" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1">Tier</CHED> <CHED H="1">Municipality</CHED> </BOXHD> <ROW> <ENT I="01">3</ENT> <ENT>Adjuntas.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Aguada.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Aguadilla.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Aguas Buenas.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Aibonito.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Añasco.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Arecibo.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Arroyo.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Barceloneta.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Barranquitas.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Bayamon.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Cabo Rojo.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Caguas.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Camuy.</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>Canovanas.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Carolina.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Cataño.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Cayey.</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>Ceiba.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Ciales.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Cidra.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Coamo.</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>Comerio.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Corozal.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Culebra.</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>Dorado.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Fajardo.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Florida.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Guanica.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Guyama.</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>Guayanilla.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Guaynabo.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Guarbo.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Hatillo.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Hormigueros.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Humacao.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Isabela.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Jayuya.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Juana Diaz.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Juncos.</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>Lajas.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Lares.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Las Marias.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Las Piedras.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Loiza.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Luquillo.</ENT> </ROW> <ROW> <ENT I="01">1</ENT> <ENT>Manati.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Maricao.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Maunabo.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Mayaguez.</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>Moca.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Morovis.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Naguabo.</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>Naranjito.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Orocovis.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Patillas.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Peñuelas.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Ponce.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Quebradillas.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Rincon.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Rio Grande.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Sabana Grande.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Salinas.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>San German.</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>San Juan.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>San Lorenzo.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>San Sebastian.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Santa Isabel.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Toa Alta.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Toa Baja.</ENT> </ROW> <ROW> <ENT I="01">2</ENT> <ENT>Trujillo Alto.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Utuado.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Vega Alta.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Vega Baja.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Vieques.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Villalba.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Yabucoa.</ENT> </ROW> <ROW> <ENT I="01">3</ENT> <ENT>Yauco.</ENT> </ROW> </GPOTABLE> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 511</EAR> <HD SOURCE="HED">PART 511—WAGE ORDER PROCEDURE FOR AMERICAN SAMOA</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>511.1</SECTNO> <SUBJECT>General method for issuance of wage orders.</SUBJECT> <SECTNO>511.2</SECTNO> <SUBJECT>Initiation of proceedings; notices of hearings.</SUBJECT> <SECTNO>511.3</SECTNO> <SUBJECT>Composition and appointment of committees.</SUBJECT> <SECTNO>511.4</SECTNO> <SUBJECT>Compensation of committee members.</SUBJECT> <SECTNO>511.5</SECTNO> <SUBJECT>Vacancies and dissolution of committees.</SUBJECT> <SECTNO>511.6</SECTNO> <SUBJECT>Investigation.</SUBJECT> <SECTNO>511.7</SECTNO> <SUBJECT>Committee staff.</SUBJECT> <SECTNO>511.8</SECTNO> <SUBJECT>Prehearing statements.</SUBJECT> <SECTNO>511.9</SECTNO> <SUBJECT>Requirements for quorum and decisions.</SUBJECT> <SECTNO>511.10</SECTNO> <SUBJECT>Subjects and issues.</SUBJECT> <SECTNO>511.11</SECTNO> <SUBJECT>Pertinent data.<PRTPAGE P="112"/> </SUBJECT> <SECTNO>511.12</SECTNO> <SUBJECT>Committee and subcommittee meetings.</SUBJECT> <SECTNO>511.13</SECTNO> <SUBJECT>Evidence.</SUBJECT> <SECTNO>511.14</SECTNO> <SUBJECT>Procedure for receiving evidence.</SUBJECT> <SECTNO>511.15</SECTNO> <SUBJECT>Submittals prior to reports.</SUBJECT> <SECTNO>511.16</SECTNO> <SUBJECT>Reports.</SUBJECT> <SECTNO>511.17</SECTNO> <SUBJECT>Records.</SUBJECT> <SECTNO>511.18</SECTNO> <SUBJECT>Publication and effective date of wage order.</SUBJECT> <SECTNO>511.19</SECTNO> <SUBJECT>Petitions.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>29 U.S.C. 205, 206, 208; 5 U.S.C. 551-559.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>21 FR 7669, Oct. 6, 1956, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 511.1</SECTNO> <SUBJECT>General method for issuance of wage orders.</SUBJECT> <P>Pursuant to authority delegated by the Secretary of Labor, the Administrator of the Wage and Hour Division publishes the orders that are required by statute to make the recommendations of industry committees effective as wage orders under section 6(a)(3) of the Fair Labor Standards Act. The wage orders issued by the Administrator must by law give effect to the recommendations of the industry committees. All wage order proceedings will be conducted in accordance with the standards provided in the Administrative Procedure Act as interpreted and applied in this part.</P> <CITA>[55 FR 53298, Dec. 28, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 511.2</SECTNO> <SUBJECT>Initiation of proceedings; notices of hearings.</SUBJECT> <P>(a) Wage order proceedings are initiated by order of the Secretary, published in the <E T="04">Federal Register,</E> giving notice of hearings by industry committees to recommend the minimum rate or rates of wages to be paid under section 6 of the Act to employees in American Samoa engaged in commerce or in the production of goods for commerce or in any enterprise engaged in commerce or in the production of goods for commerce. These orders will contain a definition of the particular industry in American Samoa, for which the committee is to make its recommendations, or these orders will direct the committee to recommend the minimum rate or rates of wages for all industry in American Samoa. All such orders will make provision for convening the committee. Any particular industry defined in such an order may be a trade, business, industry, or branch thereof, or group of industries, in which individuals are gainfully employed.</P> <P>(b) These orders will also give reasonable notice (1) of the time and place of the commencement of the hearing of such witnesses and receiving of such evidence as may be necessary or appropriate to enable the committee to perform its duties and functions under the Act, (2) of the general nature of the wage order proceedings and the authority under which they are proposed, (3) of the subjects and issues involved, and (4) that the committee will take official notice of the economic report (note § 511.13) and the parties will have an opportunity at the hearing to show any contrary or additional facts.</P> <CITA>[26 FR 6513, July 20, 1961, as amended at 55 FR 12120, Mar. 30, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 511.3</SECTNO> <SUBJECT>Composition and appointment of committees.</SUBJECT> <P>An industry committee will be composed of residents of American Samoa and residents of the United States outside of American Samoa. The Secretary will appoint as members of each committee an equal number of persons representing:</P> <P>(a) The public,</P> <P>(b) Employees in the industry, and</P> <P>(c) Employers in the industry.</P> <FP>The public members shall be disinterested, and the Secretary will designate one as chairperson. For purposes of this section only, the definition of the industry shall be considered to include all such industry throughout the United States, its territories and possessions.</FP> <CITA>[55 FR 53298, Dec. 28, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 511.4</SECTNO> <SUBJECT>Compensation of committee members.</SUBJECT> <P>Each member of an industry committee will be allowed per diem compensation at the rate specified in Chapter 304 of the Department of Labor Supplement to the Federal Personnel Manual for each day actually spent in the work of the committee, and will, in addition, be reimbursed for necessary transportation and other expenses incident to traveling in accordance with Standard Government Travel Regulations then in effect. All travel expenses <PRTPAGE P="113"/>will be paid on travel vouchers certified by the Administrator or an authorized representative. Any other necessary expenses that are incidental to the work of the committee may be incurred by the committee upon approval of, and shall be paid upon, certification of the Administrator or an authorized representative.</P> <CITA>[58 FR 34524, June 28, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 511.5</SECTNO> <SUBJECT>Vacancies and dissolution of committees.</SUBJECT> <P>The Secretary will appoint persons to fill any vacancies occurring in industry committees. If an industry committee is unable to arrive at a recommendation within a reasonable time, or refuses to make a recommendation, it may be dissolved by the Secretary. An industry committee shall cease to perform further functions when it has filed with the Administrator its report containing its findings of fact and recommendations with respect to the matters referred to it, and shall not again perform any functions with respect to any matter reported on, unless and until directed by the Administrator. An industry committee shall be dissolved automatically when its recommendations are no longer subject to review under section 10 of the Act.</P> <CITA>[27 FR 10651, Nov. 1, 1962]</CITA> </SECTION> <SECTION> <SECTNO>§ 511.6</SECTNO> <SUBJECT>Investigation.</SUBJECT> <P>The Administrator shall prepare an economic report containing such data as can be assembled pertinent to the matters to be referred to a committee. A copy of these regulations will be sent to all members of the committee following their appointment, and a copy of the economic report when completed will be furnished promptly. Before making its report the committee will decide whether it will conduct any further investigation, apart from the hearing and the review of the economic report, in connection with the matters referred to it.</P> <CITA>[55 FR 53298, Dec. 28, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 511.7</SECTNO> <SUBJECT>Committee staff.</SUBJECT> <P>Each industry committee will be furnished a lawyer, to serve as committee counsel, and an economist, to serve as committee economist. Committee counsel shall advise the committee on the issues of law, including interpretations of these regulations and the legal scope of the committee's discretion, which arise during the committee proceedings. The committee counsel and economist shall be available to advise and assist the committee at all of its meetings. The Administrator shall furnish the committee with adequate stenographic, clerical, and other assistance.</P> </SECTION> <SECTION> <SECTNO>§ 511.8</SECTNO> <SUBJECT>Prehearing statements.</SUBJECT> <P>(a) Every employer, employee, trade association, trade union, or group of employers, employees, associations, or unions in the industry as defined, or in such industry elsewhere in the United States, and every other person who, in the judgment of the committee has an interest sufficient to justify the participation proposed by such party, shall be considered an interested person. No member of the committee may participate as an interested person.</P> <P>(b) Any interested person who wishes to participate on his or her own behalf or by counsel shall file a written prehearing statement within such period of time as may be prescribed in a notice of hearing, or other notice published in the <E T="04">Federal Register.</E> The number of copies of such statements and the time and places for filing them will be specified in notices of hearings. The prehearing statement shall describe the person's interest in the proceeding and shall contain:</P> <P>(1) The prepared statement he or she proposes to give, if any;</P> <P>(2) A statement of the individual classifications and minimum wage rates, if any, he or she proposes to support;</P> <P>(3) The written data he or she proposes to introduce in evidence, including all tangible objective data to be submitted pursuant to § 511.13;</P> <P>(4) The names and addresses of the witnesses he or she proposes to call and a summary of the evidence he or she proposes to develop;</P> <P>(5) The name and address of the individual who will present his or her case; and</P> <P>(6) A statement of the approximate length of time his or her case will take.<PRTPAGE P="114"/> </P> <FP>If the prehearing statement is in conformity with the above requirements, the person shall have the right to participate as a party. In accordance with section 6(c) of the Administrative Procedure Act, the industry committee shall, after considering the advice of committee counsel, issue subpoenas, authorized by section 9 of the Fair Labor Standards Act of 1938, to parties who make a request therefor accompanied by a clear showing of general relevance and reasonable scope of the evidence sought.</FP> <P>(c) Prehearing statements of parties shall be made available for examination at the offices where they are filed. Each person who files a prehearing statement should, if requested, make himself or herself available for conference with the committee staff to make any needed clarification of his or her prehearing statement, and arrange details of presenting his or her testimony or case.</P> <P>(d) In exceptional circumstances a person who has not filed the prehearing statement required by this section and who does not appear on a witness list filed by a party may nevertheless be permitted, in the discretion of the committee, to offer testimony.</P> <CITA>[25 FR 14024, Dec. 31, 1960, as amended at 55 FR 53298, Dec. 28, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 511.9</SECTNO> <SUBJECT>Requirements for quorum and decisions.</SUBJECT> <P>Two-thirds of the members of an industry committee shall constitute a quorum. Approval by a majority of all of the members of an industry committee or subcommittee shall be required for its report. Except as otherwise provided in this part, the chairperson of the industry committee or subcommittee may make other decisions for the committee or subcommittee, but each such decision shall be subject to approval of a majority of the members present if any member objects.</P> <CITA>[55 FR 53298, Dec. 28, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 511.10</SECTNO> <SUBJECT>Subjects and issues.</SUBJECT> <P>(a) The declared policy of the Act with respect to industries or enterprises in American Samoa engaged in commerce or in the production of goods for commerce is to reach as rapidly as is economically feasible without substantially curtailing employment the object of the minimum wage rate that would apply in each such industry under paragraph (1) of section 6(a) but for section 6(a)(3) of the Act. Each industry committee shall recommend to the Administrator the highest minimum wage rates for the industry that it determines, having due regard to economic and competitive conditions, will not substantially curtail employment in the industry and will not give any industry in American Samoa a competitive advantage over any industry in the United States outside of American Samoa; except that the committee shall recommend to the Secretary the minimum wage rate prescribed in section 6(a)(1), that would be applicable but for section 6(a)(3), unless there is evidence in the record that establishes that the industry, or a predominant portion thereof, is unable to pay that wage due to such economic and competitive conditions.</P> <P>(b) Whenever the industry committee finds that a higher minimum wage may be determined for employees engaged in certain activities or in the manufacture of certain products in the industry than may be determined for other employees in the industry, the industry committee shall recommend such reasonable classifications within the industry as it determines to be necessary for the purpose of fixing for each classification the highest minimum wage rate (not in excess of that prescribed in paragraph (1) of section 6(a) of the Act) that can be determined for it under the principles set out in this section that will not substantially curtail employment in such classification and will not give a competitive advantage to any group in that industry. No classification shall be made, however, and no minimum wage rate shall be fixed solely on a regional basis or on the basis of age or sex. In determining whether there should be classifications within an industry, in making such classifications, and in determining the minimum wage rate for each classification, the committee shall consider, among other relevant factors, the following:<PRTPAGE P="115"/> </P> <P>(1) Competitive conditions as affected by transportation, living and production costs;</P> <P>(2) The wages established for work of like or comparable character by collective labor agreements negotiated between employers and employees by representatives of their own choosing; and</P> <P>(3) The wages paid for work of like or comparable character by employers who voluntarily maintain minimum wage standards in the industry.</P> <CITA>[55 FR 53298, Dec. 28, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 511.11</SECTNO> <SUBJECT>Pertinent data.</SUBJECT> <P>Among the types of data which may be considered pertinent to the subjects and issues delineated in § 511.10, are those revealing:</P> <P>(a) Employment and labor conditions and trends in American Samoa, and on the mainland, particularly since the promulgation of the presently applicable wage order, including such items as present and past employment, present wage rates and fringe benefits, changes in average hourly earnings or wage structure, provisions of collective bargaining agreements, hours of work, labor turnover, absenteeism, productivity, learning periods, rejection rates, and similar factors;</P> <P>(b) Market conditions and trends in American Samoa, and on the mainland, including changes in the volume and value of production, market outlets, price changes, style factors, consumer demand, competitive relationships, tariff rates, and similar marketing factors;</P> <P>(c) Comparative production costs in American Samoa, on the mainland, and in foreign countries, together with the factors responsible for differences;</P> <P>(d) Financial conditions and trends since promulgation of the present wage order as reflected in profit and loss statements and balance sheets; and</P> <P>(e) Data bearing on proper definitions of classifications within an industry.</P> <CITA>[55 FR 12120, Mar. 30, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 511.12</SECTNO> <SUBJECT>Committee and subcommittee meetings.</SUBJECT> <P>(a) The full committee, or a quorum thereof, will convene at the time and place appointed for an initial prehearing meeting as provided in the Secretary's order initiating the proceedings (note § 511.2). The full committee acting through a quorum will decide at that meeting whether it will preside at the reception at the hearing or will authorize a subcommittee to preside. Any resolution authorizing a subcommittee to hold the hearing shall provide a period of 30 days after:</P> <P>(1) The subcommittee has filed its recommended report and</P> <P>(2) A transcript of the subcommittee hearing is made available to the parties, for the parties to file exceptions to the recommended report, and the committee shall meet promptly thereafter on call of its chairperson or the Administrator to consider exceptions and prepare its final report.</P> <P>(b) A committee may adjourn its meeting or hearing, or both, from time to time, and meet again, at hearing or otherwise, pursuant to the terms of adjournment, or on call of its chairperson or the Administrator.</P> <CITA>[55 FR 53299, Dec. 28, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 511.13</SECTNO> <SUBJECT>Evidence.</SUBJECT> <P>In accordance with the notice of hearing, the committee and any authorized subcommittee will take official notice of the facts stated in the economic report to the extent they are not refuted by evidence received at the hearing. Other pertinent evidence available to the Department of Labor may be presented at the hearing. The committee itself may call witnesses not otherwise scheduled to testify. Oral or documentary evidence may be received, but the committee shall exclude irrelevant, immaterial, and unduly repetitious evidence. Every interested person who has met the requirements for participation as a party shall have the right to present his or her case by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination of witnesses called by others as may be required for a full and true disclosure of the facts. Testimony on behalf of an employer or group of employers as to inability to pay the minimum wage rate specified in paragraph (1) of section 6(a) of the Act, or as to inability to adjust to a higher minimum wage rate than prescribed by any applicable wage order of the Secretary, shall be <PRTPAGE P="116"/>supported by tangible objective data filed as part of the prehearing statement under § 511.8. Financial or other data shall include data for the most recent year or fraction thereof for which data are available. Financial statements filed in accordance with this provision, except those relating to a period of less than a full fiscal year or a fiscal year ending less than 90 days prior to the filing of the prehearing statement, shall be certified by an independent public accountant or shall be sworn to conform to and be consistent with the corresponding income tax returns covering the same years. Evidence of witnesses not present at the hearing may be submitted only by affidavits received with, or as a part of, a prehearing statement that meets the requirements of § 511.8 and satisfactorily explains why each affiant cannot be present. Such affidavits will be received in evidence to the same extent that testimony from affiants would have been admitted had they been present. The committee will give such weight to these statements as it considers appropriate, and the fact that such affiants have not been subject to cross-examination may be considered, along with other relevant facts, in assessing the weight to be given such evidence.</P> <CITA>[55 FR 53299, Dec. 28, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 511.14</SECTNO> <SUBJECT>Procedure for receiving evidence.</SUBJECT> <P>(a) All testimony shall be given under oath or affirmation. Any party shall have the right to appear in person, by counsel, or by other specified representative. Misconduct at any hearing shall be grounds for summary exclusion from the hearing. The committee shall limit the testimony of any witness where appropriate to prevent the hearing from becoming unduly prolonged. The refusal of a witness to answer any question which has been ruled to be proper shall, in the discretion of the committee, be ground for striking all testimony given by the witness on related matters.</P> <P>(b) Unless otherwise directed by the committee, witnesses shall be called in the following order: The committee economist qualified to testify concerning the content and preparation of the economic report, other witnesses called by the Department of Labor, witnesses called by the parties, other witnesses. Unless otherwise directed by the committee, all witnesses other than those called by the parties shall be examined in the following order: By committee counsel, by committee economist, by committee members, by the parties or their representatives. Witnesses called by the parties shall be examined first by the party calling them or by the party's specified representative, and then in the order herein indicated for all other witnesses. Redirect examination may be permitted at the discretion of the committee. Rebuttal evidence may be offered in the order and manner in this section provided for other evidence. To the extent not specified in this section, the order for calling and examining witnesses shall be specified by the chairperson of the committee or subcommittee.</P> <CITA>[21 FR 7669, Oct. 6, 1956, as amended at 55 FR 53299, Dec. 28, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 511.15</SECTNO> <SUBJECT>Submittals prior to reports.</SUBJECT> <P>As soon as the receipt of evidence is concluded, a committee or subcommittee presiding at a hearing shall receive any proposed findings of fact and recommendations together with the reasons therefor submitted by any party. These submittals shall be oral unless otherwise directed by the committee or subcommittee. If, in the discretion of the committee or subcommittee such proposals should be in writing, it may grant such additional time as it deems essential.</P> </SECTION> <SECTION> <SECTNO>§ 511.16</SECTNO> <SUBJECT>Reports.</SUBJECT> <P>Promptly after receipt of submissions under § 511.15, the committee or subcommittee will resolve the issues before it and prepare a report containing its findings of fact and recommendations. The report shall contain the committee's or the subcommittee's findings and conclusions as well as the reasons or basis therefor upon all the material issues of fact, law, or discretion presented on the record. When a committee, acting through a quorum, has presided at the reception of evidence, this report shall <PRTPAGE P="117"/>be its final report on the matters referred to it. Where, however, a subcommittee has presided at the reception of evidence, this report shall be an initial report, and the committee shall meet thereafter to review the report and rule on exceptions in its final report. Where the committee presides at the reception of evidence and proceeds to final decision, every party shall be regarded as having objected to any wage rate or classification at variance with any the party proposed in the party's prehearing statements unless the party accepted such a rate or classification in any submittal made pursuant to § 511.15. A copy of the report shall be signed by each member of the committee who approves it, either at a meeting of the committee or by circulation of one or more copies among the members of the committee. At any time within 3 days after the committee report is signed by those who approve it, members dissenting therefrom may collectively or individually submit signed reports stating the reasons for their dissent.</P> <CITA>[55 FR 53299, Dec. 28, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 511.17</SECTNO> <SUBJECT>Records.</SUBJECT> <P>Each industry committee shall keep a journal recording the time and place of all its meetings, the members present, the votes, and other formal proceedings, including the appointment of subcommittees. Subcommittees shall keep a similar journal. No report of committee or subcommittee discussions need be included. All hearings shall be recorded. The record of any hearing before any subcommittee shall be transcribed. All hearings before a committee shall also be transcribed in whole or in part whenever the Administrator so directs upon his or her own motion or upon the motion of any party or any person compelled to submit data or evidence and upon the payment of costs prescribed by the Administrator. Promptly after completion of the committee's final report, the committee chairperson shall certify the report and transmit it to the Administrator. As soon as practicable thereafter, the committee staff shall transmit to the Administrator:</P> <P>(a) All committee and subcommittee journals;</P> <P>(b) All applications for leave to participate as parties together with the record of action thereon; and,</P> <P>(c) The record, including any transcript of the testimony and exhibits, together with all papers and requests filed in the proceedings.</P> <FP>These documents shall be available for inspections and copying by interested persons at the Office of the Administrator during usual business hours.</FP> <CITA>[55 FR 53300, Dec. 28, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 511.18</SECTNO> <SUBJECT>Publication and effective date of wage order.</SUBJECT> <P>Promptly after receipt of the committee report the Administrator shall publish the committee recommendations in the <E T="04">Federal Register</E> and shall provide by order that the recommendations contained in such report shall take effect upon the expiration of 15 days after the date of such publication.</P> </SECTION> <SECTION> <SECTNO>§ 511.19</SECTNO> <SUBJECT>Petitions.</SUBJECT> <P>Any interested person may at any time file a petition with the Administrator for an amendment to the regulations contained in this part or for an amendment to a wage order applicable to that person. In view of the statutory requirement that the minimum rates of wages established by order under section 6 of the Act be reviewed by an industry committee at least biennially, substantial cause must be shown in support of any petition for an amendment of a wage order out of regular course. Any interested person may also file a petition at any time with the Administrator for a public hearing under section 13(e) of the Act to determine whether economic conditions warrant rules or regulations providing reasonable limitations or allowing reasonable variations, tolerances, or exemptions to or from any or all of the provisions of section 7 of the Act with respect to employees in American Samoa for whom the Secretary of Labor has established minimum wage rates under section 6(a)(3) of the Act and the regulations contained in this part. Whenever it appears to the Secretary of Labor, by reason of such a petition or otherwise, to be probable that such a hearing is likely to reveal that economic conditions warrant such action, <PRTPAGE P="118"/>notice of such hearing specifying the procedure to be followed will be published in the <E T="04">Federal Register.</E> </P> <CITA>[55 FR 53300, Dec. 28, 1990]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 515</EAR> <HD SOURCE="HED">PART 515—UTILIZATION OF STATE AGENCIES FOR INVESTIGATIONS AND INSPECTIONS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>515.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>515.2</SECTNO> <SUBJECT>Agreements with State agencies.</SUBJECT> <SECTNO>515.3</SECTNO> <SUBJECT>Qualifications of the State agency.</SUBJECT> <SECTNO>515.4</SECTNO> <SUBJECT>Submission of plan.</SUBJECT> <SECTNO>515.5</SECTNO> <SUBJECT>Additional requirements.</SUBJECT> <SECTNO>515.6</SECTNO> <SUBJECT>Audits.</SUBJECT> <SECTNO>515.7</SECTNO> <SUBJECT>Transmission of official mail.</SUBJECT> <SECTNO>515.8</SECTNO> <SUBJECT>Enforcement.</SUBJECT> <SECTNO>515.9</SECTNO> <SUBJECT>Agreements and approved plans.</SUBJECT> <SECTNO>515.10</SECTNO> <SUBJECT>Amendments and repeal.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 4, 49 Stat. 2038, sec. 11(b), 52 Stat. 1066; 29 U.S.C. 211(b), 41 U.S.C. 38.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>13 FR 2161, 2163, Apr. 22, 1948, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 515.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P>(a) <E T="03">Acts.</E> The term <E T="03">Acts</E> means the Fair Labor Standards Act of 1938 (Act of June 25, 1938; Chapter 676, 52 Stat. 1060, 29 U.S.C. 201) and the Public Contracts Act (Act of June 30, 1936; 49 Stat. 2036; 41 U.S.C. 35-45).</P> <P>(b) <E T="03">Administrator.</E> The term <E T="03">Administrator</E> means the Administrator of the Wage and Hour Division of the United States Department of Labor.</P> <P>(c) <E T="03">Division.</E> The term <E T="03">Division</E> means the Wage and Hour Division of the United States Department of Labor.</P> <P>(d) <E T="03">State.</E> The term <E T="03">State</E> means any State of the United States or the District of Columbia or any Territory or possession of the United States.</P> <P>(e) <E T="03">State agency.</E> The term <E T="03">State agency</E> means the agency in the State charged with the administration of labor laws which necessitate inspection of places of employment for (1) enforcement of State child-labor regulations and (2) enforcement of State maximum-hour or State minimum-wage regulations.</P> <P>(f) <E T="03">Official forms.</E> The term <E T="03">official forms</E> means forms prescribed by the Administrator or the Secretary of Labor.</P> </SECTION> <SECTION> <SECTNO>§ 515.2</SECTNO> <SUBJECT>Agreements with State agencies.</SUBJECT> <P>(a) <E T="03">Purpose.</E> The Secretary and the Administrator may enter into agreements with State agencies for the utilization of services of State and local agencies and their employees in making investigations and inspections under the Acts and for reimbursement therefor, when such State agencies have submitted plans of cooperation for such purposes and such plans have been found to be reasonably appropriate and adequate to carry out the respective functions of the Secretary and the Administrator.</P> <P>(b) <E T="03">Certificates of attorneys general.</E> No such agreement shall become effective and operative until a statement of the Attorney General of the State, or, if the Attorney General is not authorized to make such a statement, the State official who is so authorized, has been received by the Division and the Secretary of Labor certifying that the agreement is valid in the form as executed under the laws of the State.</P> </SECTION> <SECTION> <SECTNO>§ 515.3</SECTNO> <SUBJECT>Qualifications of the State agency.</SUBJECT> <P>The State agency shall have as its primary function the administration of State labor laws and shall be under the direction of an executive who gives full time to the work of the agency. The agency shall be engaged in inspecting places of employment for (a) enforcement of State child-labor laws and regulations, and (b) enforcement of State maximum hour or minimum-wage laws and regulations. An administrative division of the State agency shall be designated to make investigations and inspections under the Acts; qualified staff, under adequate supervision, shall be specifically assigned for work connected with State and Federal child-labor, maximum-hour and minimum-wage laws and regulations; and provision shall be made to inspect any establishment subject to the Acts.</P> </SECTION> <SECTION> <SECTNO>§ 515.4</SECTNO> <SUBJECT>Submission of plan.</SUBJECT> <P>The State agency shall submit a plan, in quadruplicate, which shall include the following:</P> <P>(a) A copy of the Act establishing the State agency, copies of the laws administered by the State agency, and if <PRTPAGE P="119"/>there is an act specifically authorizing the State to cooperate with the Division or the Secretary of Labor, or both, a copy of such Act.</P> <P>(b) A description of the organization of the State agency, illustrated by organization charts, showing the delegation of responsibility and lines of authority to be followed within the agency in the enforcement of the act and State labor laws.</P> <P>(c) A description: (1) Of the manner in which investigations and inspections under the Acts will be coordinated with the investigations and inspections for enforcement of State child-labor, maximum-hour and minimum-wage laws and regulations; (2) of the location of offices of the administrative division designated to make inspections under the Acts, with the job titles of employees located in each such office and employees assigned to work in connection with the Acts so designated; and (3) of the manner in which the work of inspectors will be supervised.</P> <P>(d) Provisions for the establishment and maintenance of personnel administration, with respect to personnel engaged in work under the Acts for the Division and the Secretary of Labor in accordance with the following standards:</P> <P>(1) Job classifications based upon an analysis of the duties and responsibilities of positions;</P> <P>(2) A compensation schedule adjusted to State salary schedules for similar positions: <E T="03">Provided, however,</E> That all salaries paid by the State for services rendered in accordance with an agreement entered into pursuant to § 515.2 shall be on the basis of applicable State laws or regulations, or in the absence of such applicable laws or regulations, on the approved and usual scale pair by the State for similar services and shall in no case exceed salaries paid for comparable Federal positions in the competitive classified service. Allowances for necessary traveling expenses shall be on the basis of State laws and regulations governing travel allowances;</P> <P>(3) Assignment of personnel to Federal work only when their qualifications conform substantially with qualifications of Federal employees engaged in similar work, such assignment to be made only after submission to and approval by the Division and the Secretary of Labor of a statement of the training and experience of each person who will engage in Federal work;</P> <P>(4) Appointment of new personnel on the basis of merit, either (i) from lists of eligible persons certified in the order of merit, secured under a merit system through State-wide competitive examinations which prescribe requirements of training and experience in substantial conformity with Federal civil service requirements for similar positions or (ii) from lists taken from Federal registers established through competitive examinations for similar positions, it being understood that such registers may be broken down by States;</P> <P>(5) Adequate training of staff;</P> <P>(6) Promotion on the basis of qualifications and performance;</P> <P>(7) Security of tenure assured satisfactory employees, including right of notice and hearing prior to demotion or dismissal;</P> <P>(8) Prohibition against employees engaging in political activities other than the exercise of their right to vote and to express privately their opinions on political questions.</P> <P>(e) A budget which shall show, in detail, estimated expenditures by the State agency on behalf of the Division and the Secretary of Labor for services to be rendered in connection with the administration of the Acts and a budget which shall show estimated expenditure for the enforcement of comparable State laws and regulations during the period covered by the agreement; a statement showing funds appropriated to or allocated for meeting the budget for estimated State expenditures; and a statement showing expenditures by the State agency for the enforcement of comparable State laws and regulations during the last fiscal year.</P> <P>(f) A statement of State requirements in regard to fiscal practices and to appointment of personnel, together with copies of the laws and regulations setting forth such requirements.</P> <P>(g) A statement from the Attorney General of the State or, if the Attorney General is not authorized to make such a statement, from the State official who is so authorized certifying that the State agency has authority to <PRTPAGE P="120"/>enter into an Agreement with the Division and the Secretary of Labor in accordance with this part.</P> </SECTION> <SECTION> <SECTNO>§ 515.5</SECTNO> <SUBJECT>Additional requirements.</SUBJECT> <P>(a) The State Agency shall follow the procedure set forth in the Inspection Manual for the enforcement of the act and such supplements to or provisions thereof as may be issued from time to time by the Division or the Secretary of Labor; use official forms for recording findings; make reports as required; and carry on the work connected with the administration of the Acts in conformity with the plans and budget agreed upon and with the instructions and policies of the Division and the Secretary of Labor.</P> <P>(b) Representatives of the Division and the Secretary of Labor may at any time, upon notifying the State agency, make such inspections and investigations and secure such information as may be necessary for the administration of the Acts.</P> </SECTION> <SECTION> <SECTNO>§ 515.6</SECTNO> <SUBJECT>Audits.</SUBJECT> <P>The accounting records and the supporting data pertaining to expenditures for investigations and inspections under the Acts shall be subject to audit by the Division and the Secretary of Labor, annually, or so often as the Administrator and the Secretary of Labor, may require.</P> </SECTION> <SECTION> <SECTNO>§ 515.7</SECTNO> <SUBJECT>Transmission of official mail.</SUBJECT> <P>Subject to the requirements of law and of the regulations of the Post Office Department, franked self-addressed envelopes may be used for communications from the field staff to a State official designated by the Division and the Secretary of Labor, and for communication from the State agency to the Division or the Secretary of Labor.</P> </SECTION> <SECTION> <SECTNO>§ 515.8</SECTNO> <SUBJECT>Enforcement.</SUBJECT> <P>All litigation relating to the enforcement of the Acts, other than civil actions for the recovery of wages due instituted pursuant to section 16(b) of the Fair Labor Standards Act of 1938 and all administrative proceedings instituted pursuant to section 5 of the Public Contracts Act shall be undertaken by and be under the direction and control of the Federal Government. Any State agency intending to institute a civil action in behalf of an employee or employees for the recovery of wages due, pursuant to section 16(b) of the Fair Labor Standards Act of 1938 shall notify the Division and the Secretary of Labor prior to the institution of such action.</P> </SECTION> <SECTION> <SECTNO>§ 515.9</SECTNO> <SUBJECT>Agreements and approved plans.</SUBJECT> <P>Agreements and approved plans incorporated therein may be amended upon the consent of the parties thereto.</P> </SECTION> <SECTION> <SECTNO>§ 515.10</SECTNO> <SUBJECT>Amendments and repeal.</SUBJECT> <P>This part may be amended or repealed by appropriate joint regulations issued by the Secretary of Labor and the Administrator: <E T="03">Provided, however,</E> That no such amendment or repeal shall be effective as to any agreement previously entered into by a State agency without its consent thereto.</P> </SECTION> </PART> <PART> <EAR>Pt. 516</EAR> <HD SOURCE="HED">PART 516—RECORDS TO BE KEPT BY EMPLOYERS</HD> <CONTENTS> <SUBJGRP> <HD SOURCE="HED">Introductory</HD> <SECHD>Sec.</SECHD> <SECTNO>516.0</SECTNO> <SUBJECT>Display of OMB control numbers.</SUBJECT> <SECTNO>516.1</SECTNO> <SUBJECT>Form of records; scope of regulations.</SUBJECT> </SUBJGRP> <SUBPART> <HD SOURCE="HED">Subpart A—General Requirements</HD> <SECTNO>516.2</SECTNO> <SUBJECT>Employees subject to minimum wage or minimum wage and overtime provisions pursuant to section 6 or sections 6 and 7(a) of the Act.</SUBJECT> <SECTNO>516.3</SECTNO> <SUBJECT>Bona fide executive, administrative, and professional employees (including academic administrative personnel and teachers in elementary or secondary schools), and outside sales employees employed pursuant to section 13(a)(1) of the Act.</SUBJECT> <SECTNO>516.4</SECTNO> <SUBJECT>Posting of notices.</SUBJECT> <SECTNO>516.5</SECTNO> <SUBJECT>Records to be preserved 3 years.</SUBJECT> <SECTNO>516.6</SECTNO> <SUBJECT>Records to be preserved 2 years.</SUBJECT> <SECTNO>516.7</SECTNO> <SUBJECT>Place for keeping records and their availability for inspection.</SUBJECT> <SECTNO>516.8</SECTNO> <SUBJECT>Computations and reports.</SUBJECT> <SECTNO>516.9</SECTNO> <SUBJECT>Petitions for exceptions.<PRTPAGE P="121"/> </SUBJECT> <SECTNO>516.10</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Records Pertaining to Employees Subject to Miscellaneous Exemptions Under the Act; Other Special Requirements</HD> <SECTNO>516.11</SECTNO> <SUBJECT>Employees exempt from both minimum wage and overtime pay requirements under section 13(a) (2), (3), (4), (5), (8), (10), (12) or 13(d) of the Act.</SUBJECT> <SECTNO>516.12</SECTNO> <SUBJECT>Employees exempt from overtime pay requirements pursuant to section 13(b) (1), (2), (3), (5), (9), (10), (15), (16), (17), (20), (21), (24), (27) or (28) of the Act.</SUBJECT> <SECTNO>516.13</SECTNO> <SUBJECT>Livestock auction employees exempt from overtime pay requirements under section 13(b)(13) of the Act.</SUBJECT> <SECTNO>516.14</SECTNO> <SUBJECT>Country elevator employees exempt from overtime pay requirements under section 13(b)(14) of the Act.</SUBJECT> <SECTNO>516.15</SECTNO> <SUBJECT>Local delivery employees exempt from overtime pay requirements pursuant to section 13(b)(11) of the Act.</SUBJECT> <SECTNO>516.16</SECTNO> <SUBJECT>Commission employees of a retail or service establishment exempt from overtime pay requirements pursuant to section 7(i) of the Act.</SUBJECT> <SECTNO>516.17</SECTNO> <SUBJECT>Seamen exempt from overtime pay requirements pursuant to section 13(b)(6) of the Act.</SUBJECT> <SECTNO>516.18</SECTNO> <SUBJECT>Employees employed in certain tobacco, cotton, sugar cane or sugar beet services, who are partially exempt from overtime pay requirements pursuant to section 7(m), 13(h), 13(i) or 13(j) of the Act.</SUBJECT> <SECTNO>516.19</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>516.20</SECTNO> <SUBJECT>Employees under certain collective bargaining agreements who are partially exempt from overtime pay requirements as provided in section 7(b)(1) or section 7(b)(2) of the Act.</SUBJECT> <SECTNO>516.21</SECTNO> <SUBJECT>Bulk petroleum employees partially exempt from overtime pay requirements pursuant to section 7(b)(3) of the Act.</SUBJECT> <SECTNO>516.22</SECTNO> <SUBJECT>Employees engaged in charter activities of carriers pursuant to section 7(n) of the Act.</SUBJECT> <SECTNO>516.23</SECTNO> <SUBJECT>Employees of hospitals and residential care facilities compensated for overtime work on the basis of a 14-day work period pursuant to section 7(j) of the Act.</SUBJECT> <SECTNO>516.24</SECTNO> <SUBJECT>Employees employed under section 7(f) “Belo” contracts.</SUBJECT> <SECTNO>516.25</SECTNO> <SUBJECT>Employees paid for overtime on the basis of “applicable” rates provided in sections 7(g)(1) and 7(g)(2) of the Act.</SUBJECT> <SECTNO>516.26</SECTNO> <SUBJECT>Employees paid for overtime at premium rates computed on a “basic” rate authorized in accordance with section 7(g)(3) of the Act.</SUBJECT> <SECTNO>516.27</SECTNO> <SUBJECT>“Board, lodging, or other facilities” under section 3(m) of the Act.</SUBJECT> <SECTNO>516.28</SECTNO> <SUBJECT>Tipped employees.</SUBJECT> <SECTNO>516.29</SECTNO> <SUBJECT>Employees employed by a private entity operating an amusement or recreational establishment located in a national park or national forest or on land in the National Wildlife Refuge System who are partially exempt from overtime pay requirements pursuant to section 13(b)(29) of the Act.</SUBJECT> <SECTNO>516.30</SECTNO> <SUBJECT>Learners, apprentices, messengers, students, or handicapped workers employed under special certificates as provided in section 14 of the Act.</SUBJECT> <SECTNO>516.31</SECTNO> <SUBJECT>Industrial homeworkers.</SUBJECT> <SECTNO>516.32</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>516.33</SECTNO> <SUBJECT>Employees employed in agriculture pursuant to section 13(a)(6) or 13(b)(12) of the Act.</SUBJECT> <SECTNO>516.34</SECTNO> <SUBJECT>Exemption from overtime pay for time spent by certain employees receiving remedial education pursuant to section 7(q) of the Act.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 11, 52 Stat. 1066, as amended, 29 U.S.C. 211. Section 516.33 also issued under 52 Stat. 1060, as amended; 29 U.S.C. 201 <E T="03">et seq.</E> Section 516.34 also issued under Sec. 7, 103 Stat. 944, 29 U.S.C. 207(q).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>52 FR 24896, July 1, 1987, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">Introductory</HD> <SECTION> <SECTNO>§ 516.0</SECTNO> <SUBJECT>Display of OMB control numbers.</SUBJECT> <GPOTABLE CDEF="s25,10" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1">Subpart or section where information collection requirement is located</CHED> <CHED H="1">Currently assigned OMB control No.</CHED> </BOXHD> <ROW> <ENT I="01">Subpart A (except 516.8)</ENT> <ENT>1215.0017</ENT> </ROW> <ROW> <ENT I="01">516.8</ENT> <ENT>1215.0006</ENT> </ROW> <ROW> <ENT I="01">Subpart B (except 516.31)</ENT> <ENT>1215.0017</ENT> </ROW> <ROW> <ENT I="01">516.31</ENT> <ENT>1215.0013</ENT> </ROW> <ROW> <ENT I="01">516.34</ENT> <ENT>1215.0175</ENT> </ROW> </GPOTABLE> <CITA>[52 FR 24896, July 1, 1987, as amended at 71 FR 16665, Apr. 3, 2006]</CITA> </SECTION> <SECTION> <SECTNO>§ 516.1</SECTNO> <SUBJECT>Form of records; scope of regulations.</SUBJECT> <P>(a) <E T="03">Form of records.</E> No particular order or form of records is prescribed by the regulations in this part. However, every employer subject to any provisions of the Fair Labor Standards Act of 1938, as amended (hereinafter referred to as the “Act”), is required to maintain records containing the information and data required by the specific sections of this part. The records may be maintained and preserved on microfilm or other basic source document of an automatic word or data processing memory provided that adequate projection or viewing equipment is available, that the reproductions are clear and identifiable by date or pay <PRTPAGE P="122"/>period and that extensions or transcriptions of the information required by this part are made available upon request.</P> <P>(b) <E T="03">Scope of regulations.</E> The regulations in this part are divided into two subparts.</P> <P>(1) Subpart A of this part contains the requirements generally applicable to all employers employing covered employees, including the requirements relating to the posting of notices, the preservation and location of records, and the recordkeeping requirements for employers of employees to whom both the minimum wage provisions of section 6 or the minimum wage provisions of section 6 and the overtime pay provisions of section 7(a) of the Act apply. In addition, § 516.3 contains the requirements relating to executive, administrative, and professional employees (including academic administrative personnel or teachers in elementary or secondary schools), and outside sales employees.</P> <P>(2) Subpart B of this part deals with the information and data which must be kept for employees (other than executive, administrative, etc., employees) who are subject to any of the exemptions provided in the Act. This section also specifies the records needed for deductions from and additions to wages for “board, lodging, or other facilities,” industrial homeworkers and employees whose tips are credited toward wages. The sections in subpart B of this part require the recording of more, less, or different items of information or data than required under the generally applicable recordkeeping requirements of subpart A.</P> <P>(c) <E T="03">Relationship to other recordkeeping and reporting requirements.</E> Nothing in 29 CFR part 516 shall excuse any party from complying with any recordkeeping or reporting requirement imposed by any other Federal, State or local law, ordinance, regulation or rule.</P> </SECTION> </SUBJGRP> <SUBPART> <HD SOURCE="HED">Subpart A—General Requirements</HD> <SECTION> <SECTNO>§ 516.2</SECTNO> <SUBJECT>Employees subject to minimum wage or minimum wage and overtime provisions pursuant to section 6 or sections 6 and 7(a) of the Act.</SUBJECT> <P>(a) <E T="03">Items required.</E> Every employer shall maintain and preserve payroll or other records containing the following information and data with respect to each employee to whom section 6 or both sections 6 and 7(a) of the Act apply:</P> <P>(1) Name in full, as used for Social Security recordkeeping purposes, and on the same record, the employee's identifying symbol or number if such is used in place of name on any time, work, or payroll records,</P> <P>(2) Home address, including zip code,</P> <P>(3) Date of birth, if under 19,</P> <P>(4) Sex and occupation in which employed (sex may be indicated by use of the prefixes Mr., Mrs., Miss., or Ms.) (Employee's sex identification is related to the equal pay provisions of the Act which are administered by the Equal Employment Opportunity Commission. Other equal pay recordkeeping requirements are contained in 29 CFR part 1620.)</P> <P>(5) Time of day and day of week on which the employee's workweek begins (or for employees employed under section 7(k) of the Act, the starting time and length of each employee's work period). If the employee is part of a workforce or employed in or by an establishment all of whose workers have a workweek beginning at the same time on the same day, a single notation of the time of the day and beginning day of the workweek for the whole workforce or establishment will suffice,</P> <P>(6)(i) Regular hourly rate of pay for any workweek in which overtime compensation is due under section 7(a) of the Act, (ii) explain basis of pay by indicating the monetary amount paid on a per hour, per day, per week, per piece, commission on sales, or other basis, and (iii) the amount and nature of each payment which, pursuant to section 7(e) of the Act, is excluded from the “regular rate” (these records may be in the form of vouchers or other payment data),</P> <P>(7) Hours worked each workday and total hours worked each workweek (for <PRTPAGE P="123"/>purposes of this section, a “workday” is any fixed period of 24 consecutive hours and a “workweek” is any fixed and regularly recurring period of 7 consecutive workdays),</P> <P>(8) Total daily or weekly straight-time earnings or wages due for hours worked during the workday or workweek, exclusive of premium overtime compensation,</P> <P>(9) Total premium pay for overtime hours. This amount excludes the straight-time earnings for overtime hours recorded under paragraph (a)(8) of this section,</P> <P>(10) Total additions to or deductions from wages paid each pay period including employee purchase orders or wage assignments. Also, in individual employee records, the dates, amounts, and nature of the items which make up the total additions and deductions,</P> <P>(11) Total wages paid each pay period,</P> <P>(12) Date of payment and the pay period covered by payment.</P> <P>(b) <E T="03">Records of retroactive payment of wages.</E> Every employer who makes retroactive payment of wages or compensation under the supervision of the Administrator of the Wage and Hour Division pursuant to section 16(c) and/or section 17 of the Act, shall:</P> <P>(1) Record and preserve, as an entry on the pay records, the amount of such payment to each employee, the period covered by such payment, and the date of payment.</P> <P>(2) Prepare a report of each such payment on a receipt form provided by or authorized by the Wage and Hour Division, and (i) preserve a copy as part of the records, (ii) deliver a copy to the employee, and (iii) file the original, as evidence of payment by the employer and receipt by the employee, with the Administrator or an authorized representative within 10 days after payment is made.</P> <P>(c) <E T="03">Employees working on fixed schedules.</E> With respect to employees working on fixed schedules, an employer may maintain records showing instead of the hours worked each day and each workweek as required by paragraph (a)(7) of this section, the schedule of daily and weekly hours the employee normally works. Also,</P> <P>(1) In weeks in which an employee adheres to this schedule, indicates by check mark, statement or other method that such hours were in fact actually worked by him, and</P> <P>(2) In weeks in which more or less than the scheduled hours are worked, shows that exact number of hours worked each day and each week.</P> </SECTION> <SECTION> <SECTNO>§ 516.3</SECTNO> <SUBJECT>Bona fide executive, administrative, and professional employees (including academic administrative personnel and teachers in elementary or secondary schools), and outside sales employees employed pursuant to section 13(a)(1) of the Act.</SUBJECT> <P>With respect to each employee in a bona fide executive, administrative, or professional capacity (including employees employed in the capacity of academic administrative personnel or teachers in elementary or secondary schools), or in outside sales, as defined in part 541 of this chapter (pertaining to so-called “white collar” employee exemptions), employers shall maintain and preserve records containing all the information and data required by § 516.2(a) except paragraphs (a) (6) through (10) and, in addition, the basis on which wages are paid in sufficient detail to permit calculation for each pay period of the employee's total remuneration for employment including fringe benefits and prerequisites. (This may be shown as the dollar amount of earnings per month, per week, per month plus commissions, etc. with appropriate addenda such as “plus hospitalization and insurance plan A,” “benefit package B,” “2 weeks paid vacation,” etc.)</P> </SECTION> <SECTION> <SECTNO>§ 516.4</SECTNO> <SUBJECT>Posting of notices.</SUBJECT> <P>Every employer employing any employees subject to the Act's minimum wage provisions shall post and keep posted a notice explaining the Act, as prescribed by the Wage and Hour Division, in conspicuous places in every establishment where such employees are employed so as to permit them to observe readily a copy. Any employer of employees to whom section 7 of the Act does not apply because of an exemption of broad application to an establishment may alter or modify the poster with a legible notation to show that the overtime provisions do not apply. For example: </P> <EXTRACT> <PRTPAGE P="124"/> <FP>Overtime Provisions Not Applicable to Taxicab Drivers (section 13(b)(17)).</FP> </EXTRACT> </SECTION> <SECTION> <SECTNO>§ 516.5</SECTNO> <SUBJECT>Records to be preserved 3 years.</SUBJECT> <P>Each employer shall preserve for at least 3 years:</P> <P>(a) <E T="03">Payroll records.</E> From the last date of entry, all payroll or other records containing the employee information and data required under any of the applicable sections of this part, and</P> <P>(b) <E T="03">Certificates, agreements, plans, notices, etc.</E> From their last effective date, all written:</P> <P>(1) Collective bargaining agreements relied upon for the exclusion of certain costs under section 3(m) of the Act,</P> <P>(2) Collective bargaining agreements, under section 7(b)(1) or 7(b)(2) of the Act, and any amendments or additions thereto,</P> <P>(3) Plans, trusts, employment contracts, and collective bargaining agreements under section 7(e) of the Act,</P> <P>(4) Individual contracts or collective bargaining agreements under section 7(f) of the Act. Where such contracts or agreements are not in writing, a written memorandum summarizing the terms of each such contract or agreement,</P> <P>(5) Written agreements or memoranda summarizing the terms of oral agreements or understandings under section 7(g) or 7(j) of the Act, and</P> <P>(6) Certificates and notices listed or named in any applicable section of this part.</P> <P>(c) <E T="03">Sales and purchase records.</E> A record of (1) total dollar volume of sales or business, and (2) total volume of goods purchased or received during such periods (weekly, monthly, quarterly, etc.), in such form as the employer maintains records in the ordinary course of business.</P> </SECTION> <SECTION> <SECTNO>§ 516.6</SECTNO> <SUBJECT>Records to be preserved 2 years.</SUBJECT> <P>(a) Supplementary basic records: Each employer required to maintain records under this part shall preserve for a period of at least 2 years.</P> <P>(1) <E T="03">Basic employment and earnings records.</E> From the date of last entry, all basic time and earning cards or sheets on which are entered the daily starting and stopping time of individual employees, or of separate work forces, or the amounts of work accomplished by individual employees on a daily, weekly, or pay period basis (for example, units produced) when those amounts determine in whole or in part the pay period earnings or wages of those employees.</P> <P>(2) <E T="03">Wage rate tables.</E> From their last effective date, 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 pay computation.</P> <P>(b) Order, shipping, and billing records: From the last date of entry, the originals or true copies of all customer orders or invoices received, incoming or outgoing shipping or delivery records, as well as all bills of lading and all billings to customers (not including individual sales slips, cash register tapes or the like) which the employer retains or makes in the usual course of business operations.</P> <P>(c) Records of additions to or deductions from wages paid:</P> <P>(1) Those records relating to individual employees referred to in § 516.2(a)(10) and</P> <P>(2) All records used by the employer in determining the original cost, operating and maintenance cost, and depreciation and interest charges, if such costs and charges are involved in the additions to or deductions from wages paid.</P> </SECTION> <SECTION> <SECTNO>§ 516.7</SECTNO> <SUBJECT>Place for keeping records and their availability for inspection.</SUBJECT> <P>(a) <E T="03">Place of records.</E> Each employer shall keep the records required by this part safe and accessible at the place or places of employment, or at one or more established central recordkeeping offices where such records are customarily maintained. Where the records are maintained at a central recordkeeping office, other than in the place or places of employment, such records shall be made available within 72 hours following notice from the Administrator or a duly authorized and designated representative.</P> <P>(b) <E T="03">Inspection of records.</E> All records shall be available for inspection and transcription by the Administrator or a duly authorized and designated representative.</P> </SECTION> <SECTION> <PRTPAGE P="125"/> <SECTNO>§ 516.8</SECTNO> <SUBJECT>Computations and reports.</SUBJECT> <P>Each employer required to maintain records under this part shall make such extension, recomputation, or transcription of the records and shall submit to the Wage and Hour Division such reports concerning persons employed and the wages, hours, and other conditions and practices of employment set forth in the records as the Administrator or a duly authorized and designated representative may request in writing.</P> </SECTION> <SECTION> <SECTNO>§ 516.9</SECTNO> <SUBJECT>Petitions for exceptions.</SUBJECT> <P>(a) <E T="03">Submission of petitions for relief.</E> Any employer or group of employers who, due to peculiar conditions under which they must operate, desire authority to maintain records in a manner other than required in this part, or to be relieved of preserving certain records for the period specified in this part, may submit a written petition to the Administrator requesting such authority, setting forth the reasons therefor.</P> <P>(b) <E T="03">Action on petitions.</E> If, after review of the petition, the Administrator finds that the authority requested will not hinder enforcement of the Act, the Administrator may grant such authority limited by any conditions determined necessary and subject to subsequent revocation. Prior to revocation of such authority because of noncompliance with any of the prescribed conditions, the employer will be notified of the reasons and given an opportunity to come into compliance.</P> <P>(c) <E T="03">Compliance after submission of petitions.</E> The submission of a petition or the delay of the Administrator in acting upon such petition will not relieve any employer or group of employers from any obligations to comply with all the applicable requirements of the regulations in this part. However, the Administrator will provide a response to all petitions as soon as possible.</P> </SECTION> <SECTION> <SECTNO>§ 516.10</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Records Pertaining to Employees Subject to Miscellaneous Exemptions Under the Act; Other Special Requirements</HD> <SECTION> <SECTNO>§ 516.11</SECTNO> <SUBJECT>Employees exempt from both minimum wage and overtime pay requirements under section 13(a) (2), (3), (4), (5), (8), (10), (12), or 13(d) of the Act.</SUBJECT> <P>With respect to each and every employee exempt from both the minimum wage and overtime pay requirements of the Act pursuant to the provisions of section 13(a) (2), (3), (4), (5), (8), (10), (12), or 13(d) of the Act, employers shall maintain and preserve records containing the information and data required by § 516.2(a) (1) through (4).</P> </SECTION> <SECTION> <SECTNO>§ 516.12</SECTNO> <SUBJECT>Employees exempt from overtime pay requirements pursuant to section 13(b) (1), (2), (3), (5), (9), (10), (15), (16), (17), (20), (21), (24), (27), or (28) of the Act.</SUBJECT> <P>With respect to each employee exempt from the overtime pay requirements of the Act pursuant to the provisions of section 13(b) (1), (2), (3), (5), (9), (10), (15), (16), (17), (20), (21), (24), (27), or (28) of the Act, shall maintain and preserve payroll or other records, containing all the information and data required by § 516.2(a) except paragraphs (a) (6) and (9) and, in addition, information and data regarding the basis on which wages are paid (such as the monetary amount paid, expressed as earnings per hour, per day, per week, etc.).</P> </SECTION> <SECTION> <SECTNO>§ 516.13</SECTNO> <SUBJECT>Livestock auction employees exempt from overtime pay requirements under section 13(b)(13) of the Act.</SUBJECT> <P>With respect to each employee exempt from the overtime pay requirements of the Act pursuant to section 13(b)(13), the employer shall maintain and preserve records containing the information and data required by § 516.2(a) except paragraphs (a) (6) and (9) and, in addition, for each workweek in which the employee is employed both in agriculture and in connection with livestock auction operations:<PRTPAGE P="126"/> </P> <P>(a) The total number of hours worked by each such employee,</P> <P>(b) The total number of hours in which the employee was employed in agriculture and the total number of hours employed in connection with livestock auction operations, and</P> <P>(c) The total straight-time earnings for employment in livestock auction operations.</P> </SECTION> <SECTION> <SECTNO>§ 516.14</SECTNO> <SUBJECT>Country elevator employees exempt from overtime pay requirements under section 13(b)(14) of the Act.</SUBJECT> <P>(a) With respect to each employee exempt from the overtime pay requirements of the Act pursuant to section 13(b)(14), the employer shall maintain and preserve records containing the information and data required by § 516.2(a) except paragraphs (a) (6) and (9) and, in addition, for each workweek, the names and occupations of all persons employed in the country elevator, whether or not covered by the Act, and</P> <P>(b) Information demonstrating that the “area of production” requirements of part 536 of this chapter are met.</P> </SECTION> <SECTION> <SECTNO>§ 516.15</SECTNO> <SUBJECT>Local delivery employees exempt from overtime pay requirements pursuant to section 13(b)(11) of the Act.</SUBJECT> <P>With respect to each employee exempt from the overtime pay requirements of the Act pursuant to section 13(b)(11), the employer shall maintain and preserve payroll or other records, containing all the information and data required by § 516.2(a) except paragraphs (a) (6) and (9) and, in addition, information and data regarding the basis on which wages are paid (such as the dollar amount paid per trip; the dollar amount of earnings per week plus 3 percent commission on all cases delivered). Records shall also contain the following information:</P> <P>(a) A copy of the Administrator's finding under part 551 of this chapter with respect to the plan under which such employees are compensated;</P> <P>(b) A statement or description of any changes made in the trip rate or other delivery payment plan of compensation for such employees since its submission for such finding;</P> <P>(c) Identification of each employee employed pursuant to such plan and the work assignments and duties; and</P> <P>(d) A computation for each quarter-year of the average weekly hours of full-time employees employed under the plan during the most recent representative annual period as described in § 551.8(g) (1) and (2) of this chapter.</P> </SECTION> <SECTION> <SECTNO>§ 516.16</SECTNO> <SUBJECT>Commission employees of a retail or service establishment exempt from overtime pay requirements pursuant to section 7(i) of the Act.</SUBJECT> <P>With respect to each employee of a retail or service establishment exempt from the overtime pay requirements of the Act pursuant to the provisions of section 7(i), employers shall maintain and preserve payroll and other records containing all the information and data required by § 516.2(a) except paragraphs (a) (6), (8), (9), and (11), and in addition:</P> <P>(a) A symbol, letter or other notation placed on the payroll records identifying each employee who is paid pursuant to section 7(i).</P> <P>(b) A copy of the agreement or understanding under which section 7(i) is utilized or, if such agreement or understanding is not in writing, a memorandum summarizing its terms including the basis of compensation, the applicable representative period and the date the agreement was entered into and how long it remains in effect. Such agreements or understandings, or summaries may be individually or collectively drawn up.</P> <P>(c) Total compensation paid to each employee each pay period (showing separately the amount of commissions and the amount of noncommission straight-time earnings).</P> </SECTION> <SECTION> <SECTNO>§ 516.17</SECTNO> <SUBJECT>Seamen exempt from overtime pay requirements pursuant to section 13(b)(6) of the Act.</SUBJECT> <P>With respect to each employee employed as a seaman and exempt from the overtime pay requirements of the Act pursuant to section 13(b)(6), the employer shall maintain and preserve payroll or other records, containing all the information required by § 516.2(a) except paragraphs (a) (5) through (9) and, in addition, the following:<PRTPAGE P="127"/> </P> <P>(a) Basis on which wages are paid (such as the dollar amount paid per hour, per day, per month, etc.)</P> <P>(b) Hours worked each workday and total hours worked each pay period (for purposes of this section, a “workday” shall be any fixed period of 24 consecutive hours; the “pay period” shall be the period covered by the wage payment, as provided in section 6(a)(4) of the Act),</P> <P>(c) Total straight-time earnings or wages for each such pay period, and</P> <P>(d) The name, type, and documentation, registry number, or other identification of the vessel or vessels upon which employed.</P> </SECTION> <SECTION> <SECTNO>§ 516.18</SECTNO> <SUBJECT>Employees employed in certain tobacco, cotton, sugar cane or sugar beet services, who are partially exempt from overtime pay requirements pursuant to section 7(m), 13(h), 13(i) or 13(j) of the Act.</SUBJECT> <P>With respect to each employee providing services in connection with certain types of green leaf or cigar leaf tobacco, cotton, cottonseed, cotton ginning, sugar cane, sugar processing or sugar beets who are partially exempt from the overtime pay requirements of the Act pursuant to 7(m), 13(h), 13(i) or 13(j), the employer shall, in addition to the records required in § 516.2, maintain and preserve a record of the daily and weekly overtime compensation paid. Also, the employer shall note in the payroll records the beginning date of each workweek during which the establishment operates under the particular exemption.</P> </SECTION> <SECTION> <SECTNO>§ 516.19</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 516.20</SECTNO> <SUBJECT>Employees under certain collective bargaining agreements who are partially exempt from overtime pay requirements as provided in section 7(b)(1) or section 7(b)(2) of the Act.</SUBJECT> <P>(a) The employer shall maintain and preserve all the information and data required by § 516.2 and shall record daily as well as weekly overtime compensation for each employee employed:</P> <P>(1) Pursuant to an agreement, made as a result of collective bargaining by representatives of employees certified as bona fide by the National Labor Relations Board, which provides that no employees shall be employed more than 1,040 hours during any period of 26 consecutive weeks as provided in section 7(b)(1) of the Act, or</P> <P>(2) Pursuant to an agreement, made as a result of collective bargaining by representatives of employees certified as bona fide by the National Labor Relations Board, which provides that the employee shall be employed not more than 2,240 hours during a specified period of 52 consecutive weeks and shall be guaranteed employment as provided in section 7(b)(2) of the Act.</P> <P>(b) The employer shall also keep copies of such collective bargaining agreement and such National Labor Relations Board certification as part of the records and shall keep a copy of each amendment or addition thereto.</P> <P>(c) The employer shall also make and preserve a record, either separately or as a part of the payroll:</P> <P>(1) Listing each employee employed pursuant to each such collective bargaining agreement and each amendment and addition thereto.</P> <P>(2) Indicating the period or periods during which the employee has been or is employed pursuant to an agreement under section 7(b)(1) or 7(b)(2) of the Act, and</P> <P>(3) Showing the total hours worked during any period of 26 consecutive weeks, if the employee is employed in accordance with section 7(b)(1) of the Act, or during the specified period of 52 consecutive weeks, if employed in accordance with section 7(b)(2) of the Act.</P> </SECTION> <SECTION> <SECTNO>§ 516.21</SECTNO> <SUBJECT>Bulk petroleum employees partially exempt from overtime pay requirements pursuant to section 7(b)(3) of the Act.</SUBJECT> <P>With respect to each employee partially exempt from the overtime provisions of the Act pursuant to section 7(b)(3), the employer shall maintain and preserve records containing all the information and data required by § 516.2(a), and, in addition, shall record the daily as well as the weekly overtime compensation paid to the employees, the rate per hour and the total pay for time worked between the 40th and 56th hour of the workweek.</P> </SECTION> <SECTION> <PRTPAGE P="128"/> <SECTNO>§ 516.22</SECTNO> <SUBJECT>Employees engaged in charter activities of carriers pursuant to section 7(n) of the Act.</SUBJECT> <P>With respect to each employee employed in charter activities for a street, suburban or interurban electric railway or local trolley or motorbus carrier pursuant to section 7(n) of the Act, the employer shall maintain and preserve records containing all the information and data required by § 516.2(a) and, in addition, the following:</P> <P>(a) Hours worked each workweek in charter activities; and</P> <P>(b) A copy of the employment agreement or understanding stating that in determining the hours of employment for overtime pay purposes, the hours spent by the employee in charter activities will be excluded and, also, the date this agreement or understanding was entered into.</P> </SECTION> <SECTION> <SECTNO>§ 516.23</SECTNO> <SUBJECT>Employees of hospitals and residential care facilities compensated for overtime work on the basis of a 14-day work period pursuant to section 7(j) of the Act.</SUBJECT> <P>With respect to each employee of hospitals and institutions primarily engaged in the care of the sick, the aged, or mentally ill or defective who reside on the premises compensated for overtime work on the basis of a work period of 14 consecutive days pursuant to an agreement or understanding under section 7(j) of the Act, employers shall maintain and preserve.</P> <P>(a) The records required by § 516.2 except paragraphs (a) (5) and (7) through (9), and in addition:</P> <P>(1) Time of day and day of week on which the employee's 14-day work period begins,</P> <P>(2) Hours worked each workday and total hours worked each 14-day work period,</P> <P>(3) Total straight-time wages paid for hours worked during the 14-day period,</P> <P>(4) Total overtime excess compensation paid for hours worked in excess of 8 in a workday and 80 in the work period.</P> <P>(b) A copy of the agreement or understanding with respect to using the 14-day period for overtime pay computations or, if such agreement or understanding is not in writing, a memorandum summarizing its terms and showing the date it was entered into and how long it remains in effect.</P> </SECTION> <SECTION> <SECTNO>§ 516.24</SECTNO> <SUBJECT>Employees employed under section 7(f) “Belo” contracts.</SUBJECT> <P>With respect to each employee to whom both sections 6 and 7(f) of the Act apply, the employer shall maintain and preserve payroll or other records containing all the information and data required by § 516.2(a) except paragraphs (a) (8) and (9), and, in addition, the following:</P> <P>(a) Total weekly guaranteed earnings,</P> <P>(b) Total weekly compensation in excess of weekly guaranty,</P> <P>(c) A copy of the bona fide individual contract or the agreement made as a result of collective bargaining by representatives of employees, or where such contract or agreement is not in writing, a written memorandum summarizing its terms.</P> </SECTION> <SECTION> <SECTNO>§ 516.25</SECTNO> <SUBJECT>Employees paid for overtime on the basis of “applicable” rates provided in sections 7(g)(1) and 7(g)(2) of the Act.</SUBJECT> <P>With respect to each employee compensated for overtime work in accordance with section 7(g)(1) or 7(f)(2) of the Act, employers shall maintain and preserve records containing all the information and data required by § 516.2(a) except paragraphs (a) (6) and (9) and, in addition, the following:</P> <P>(a)(1) Each hourly or piece rate at which the employee is employed, (2) basis on which wages are paid, and (3) the amount and nature of each payment which, pursuant to section 7(e) of the Act, is excluded from the “regular rate,”</P> <P>(b) The number of overtime hours worked in the workweek at each applicable hourly rate or the number of units of work performed in the work-week at each applicable piece rate during the overtime hours,</P> <P>(c) Total weekly overtime compensation at each applicable rate which is over and above all straight-time earnings or wages earned during overtime worked,</P> <P>(d) The date of the agreement or understanding to use this method of compensation and the period covered. If the <PRTPAGE P="129"/>employee is part of a workforce or employed in or by an establishment all of whose workers have agreed to use this method of compensation a single notation of the date of the agreement or understanding and the period covered will suffice.</P> </SECTION> <SECTION> <SECTNO>§ 516.26</SECTNO> <SUBJECT>Employees paid for overtime at premium rates computed on a “basic” rate authorized in accordance with section 7(g)(3) of the Act.</SUBJECT> <P>With respect to each employee compensated for overtime hours at a “basic” rate which is substantially equivalent to the employee's average hourly earnings, as authorized in accordance with section 7(g)(3) of the Act and part 548 of this chapter, employers shall maintain and preserve records containing all the information and data required by § 516.2 except paragraph (a)(6) thereof and, in addition, the following:</P> <P>(a)(1) The hourly rates, piece rates, or commission rates applicable to each type of work performed by the employee,</P> <P>(2) The computation establishing the basic rate at which the employee is compensated for overtime hours (if the employee is part of a workforce or employed in or by an establishment all of whose workers have agreed to accept this method of compensation, a single entry of this computation will suffice),</P> <P>(3) The amount and nature of each payment which, pursuant to section 7(e) of the Act, is excluded from the “regular rate.”</P> <P>(b)(1) Identity of representative period for computing the basic rate, (2) the period during which the established basic rate is to be used for computing overtime compensation, (3) information which establishes that there is no significant difference between the pertinent terms, conditions and circumstances of employment in the period selected for the computation of the basic rate and those in the period for which the basic rate is used for computing overtime compensation, which could affect the representative character of the period from which the basic rate is derived.</P> <P>(c) A copy of the written agreement or, if there is no such agreement, a memorandum summarizing the terms of and showing the date and period covered by the oral agreement or understanding to use this method of computation. If the employee is one of a group, all of whom have agreed to use this method of computation, a single memorandum will suffice.</P> </SECTION> <SECTION> <SECTNO>§ 516.27</SECTNO> <SUBJECT>“Board, lodging, or other facilities” under section 3(m) of the Act.</SUBJECT> <P>(a) In addition to keeping other records required by this part, an employer who makes deductions from the wages of employees for “board, lodging, or other facilities” (as these terms are used in sec. 3(m) of the Act) furnished to them by the employer or by an affiliated person, or who furnishes such “board, lodging, or other facilities” to employees as an addition to wages, shall maintain and preserve records substantiating the cost of furnishing each class of facility except as noted in paragraph (c) of this section. Separate records of the cost of each item furnished to an employee need not be kept. The requirements may be met by keeping combined records of the costs incurred in furnishing each class of facility, such as housing, fuel, or merchandise furnished through a company store or commissary. Thus, in the case of an employer who furnishes housing, separate cost records need not be kept for each house. The cost of maintenance, utilities, and repairs for all the houses may be shown together. Original cost and depreciation records may be kept for groups of houses acquired at the same time. Costs incurred in furnishing similar or closely related facilities, moreover, may be shown in combined records. Where cost records are kept for a “class” of facility rather than for each individual article furnished to employees, the records must also show the gross income derived from each such class of facility; e.g., gross rentals in the case of houses, total sales through the store or commissary, total receipts from sales of fuel, etc.</P> <P>(1) Such records shall include itemized accounts showing the nature and amount of any expenditures entering into the computation of the reasonable cost, as defined in part 531 of this <PRTPAGE P="130"/>chapter, and shall contain the data required to compute the amount of the depreciated investment in any assets allocable to the furnishing of the facilities, including the date of acquisition or construction, the original cost, the rate of depreciation and the total amount of accumulated depreciation on such assets. If the assets include merchandise held for sale to employees, the records should contain data from which the average net investment in inventory can be determined.</P> <P>(2) No particular degree of itemization is prescribed. However, the amount of detail shown in these accounts should be consistent with good accounting practices, and should be sufficient to enable the Administrator or authorized representative to verify the nature of the expenditure and the amount by reference to the basic records which must be preserved pursuant to § 516.6(c)(2).</P> <P>(b) If additions to or deductions from wages paid (1) so affect the total cash wages due in any workweek (even though the employee actually is paid on other than a workweek basis) as to result in the employee receiving less in cash than the applicable minimum hourly wage, or (2) if the employee works in excess of the applicable maximum hours standard and (i) any additions to the wages paid are a part of wages, or (ii) any deductions made are claimed as allowable deductions under sec. 3(m) of the Act, the employer shall maintain records showing on a workweek basis those additions to or deductions from wages. (For legal deductions not claimed under sec. 3(m) and which need not be maintained on a workweek basis, see part 531 of this chapter.)</P> <P>(c) The records specified in this section are not required with respect to an employee in any workweek in which the employee is not subject to the overtime provisions of the Act and receives not less than the applicable statutory minimum wage in cash for all hours worked in that workweek. (The application of section 3(m) of the Act in nonovertime weeks is discussed in part 531 of this chapter.)</P> </SECTION> <SECTION> <SECTNO>§ 516.28</SECTNO> <SUBJECT>Tipped employees.</SUBJECT> <P>(a) With respect to each tipped employee whose wages are determined pursuant to section 3(m) of the Act, the employer shall maintain and preserve payroll or other records containing all the information and data required in § 516.2(a) and, in addition, the following:</P> <P>(1) A symbol, letter or other notation placed on the pay records identifying each employee whose wage is determined in part by tips.</P> <P>(2) Weekly or monthly amount reported by the employee, to the employer, of tips received (this may consist of reports made by the employees to the employer on IRS Form 4070).</P> <P>(3) Amount by which the wages of each tipped employee have been deemed to be increased by tips as determined by the employer (not in excess of 40 percent of the applicable statutory minimum wage). The amount per hour which the employer takes as a tip credit shall be reported to the employee in writing each time it is changed from the amount per hour taken in the preceding week.</P> <P>(4) Hours worked each workday in any occupation in which the employee does not receive tips, and total daily or weekly straight-time payment made by the employer for such hours.</P> <P>(5) Hours worked each workday in occupations in which the employee receives tips, and total daily or weekly straight-time earnings for such hours.</P> <P>(b) [Reserved]</P> </SECTION> <SECTION> <SECTNO>§ 516.29</SECTNO> <SUBJECT>Employees employed by a private entity operating an amusement or recreational establishment located in a national park or national forest or on land in the National Wildlife Refuge System who are partially exempt from overtime pay requirements pursuant to section 13(b)(29) of the Act.</SUBJECT> <P>With respect to each employee who is partially exempt from the overtime pay requirements of the Act pursuant to section 13(b)(29), the employer shall maintain and preserve the records required in § 516.2, except that the record of the regular hourly rate of pay in § 516.2(a)(6) shall be required only in a workweek when overtime compensation is due under section 13(b)(29).</P> </SECTION> <SECTION> <PRTPAGE P="131"/> <SECTNO>§ 516.30</SECTNO> <SUBJECT>Learners, apprentices, messengers, students, or handicapped workers employed under special certificates as provided in section 14 of the Act.</SUBJECT> <P>(a) With respect to persons employed as learners, apprentices, messengers or full-time students employed outside of their school hours in any retail or service establishment in agriculture, or in institutions of higher education, or handicapped workers employed at special minimum hourly rates under Special Certificates pursuant to section 14 of the Act, employers shall maintain and preserve records containing the same information and data required with respect to other employees employed in the same occupations.</P> <P>(b) In addition, each employer shall segregate on the payroll or pay records the names and required information and data with respect to those learners, apprentices, messengers, handicapped workers and students, employed under Special Certificates. A symbol or letter may be placed before each such name on the payroll or pay records indicating that that person is a “learner,” “apprentice,” “messenger,” “student,” or “handicapped worker,” employed under a Special Certificate.</P> </SECTION> <SECTION> <SECTNO>§ 516.31</SECTNO> <SUBJECT>Industrial homeworkers.</SUBJECT> <P>(a) <E T="03">Definitions</E>—(1) <E T="03">Industrial homeworker</E> and <E T="03">homeworker,</E> as used in this section, mean any employee employed or suffered or permitted to perform industrial homework for an employer.</P> <P>(2) <E T="03">Industrial homework,</E> as used in this section, means the production by any person in or about a home, apartment, tenement, or room in a residential establishment of goods for an employer who suffers or permits such production, regardless of the source (whether obtained from an employer or elsewhere) of the materials used by the homeworker in such production.</P> <P>(3) The meaning of the terms person, employ, employer, employee, goods, and production as used in this section is the same as in the Act.</P> <P>(b) <E T="03">Items required.</E> In addition to all of the records required by § 516.2, every employer of homeworkers shall maintain and preserve payroll or other records containing the following information and data with respect to each and every industrial homeworker employed (excepting those homeworkers to whom section 13(d) of the Act applies and those homeworkers in Puerto Rico to whom part 545 of this chapter applies, or in the Virgin Islands to whom part 695 of this chapter applies):</P> <P>(1) With respect to each lot of work:</P> <P>(i) Date on which work is given out to worker, or begun by worker, and amount of such work given out or begun;</P> <P>(ii) Date on which work is turned in by worker, and amount of such work;</P> <P>(iii) Kind of articles worked on and operations performed;</P> <P>(iv) Piece rates paid;</P> <P>(v) Hours worked on each lot of work turned in;</P> <P>(vi) Wages paid for each lot of work turned in.</P> <P>(2) With respect to any agent, distributor, or contractor: The name and address of each such agent, distributor, or contractor through whom homework is distributed or collected and the name and address of each homeworker to whom homework is distributed or from whom it is collected by each such agent, distributor, or contractor.</P> <P>(c) <E T="03">Homeworker handbook.</E> In addition to the information and data required in paragraph (b) of this section, a separate handbook (to be obtained by the employer from the Wage and Hour Division and supplied by such employer to each worker) shall be kept for each homeworker. The employer is required to insure that the hours worked and other information required therein is entered by the homeworker when work is performed and/or business-related expenses are incurred. This handbook must remain in the possession of the homeworker except at the end of each pay period when it is to be submitted to the employer for transcription of the hours worked and other required information and for computation of wages to be paid. The handbooks shall include a provision for written verification by the employer attesting that the homeworker was instructed to accurately record all of the required information regarding such homeworker's employment, and that, to the best of his or her knowledge and belief, the information was recorded <PRTPAGE P="132"/>accurately. Once no space remains in the handbook for additional entries, or upon termination of the homeworker's employment, the handbook shall be returned to the employer. The employer shall then preserve this handbook for at least two years and make it available for inspection by the Wage and Hour Division on request.</P> <CITA>[52 FR 24896, July 1, 1987, as amended at 53 FR 45726, Nov. 10, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 516.32</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 516.33</SECTNO> <SUBJECT>Employees employed in agriculture pursuant to section 13(a)(6) or 13(b)(12) of the Act.</SUBJECT> <P>(a) No records, except as required under paragraph (f) of this section, need be maintained by an employer who did not use more than 500 man-days <SU>1</SU> <FTREF/> of agricultural labor in any quarter of the preceding calendar year, unless it can reasonably be anticipated that more than 500 man-days of agricultural labor will be used in at least one calendar quarter of the current calendar year. The 500 man-day test includes the work of agricultural workers supplied by crew leaders, or farm labor contractors, if the farmer is an employer of such workers, or a joint employer of such workers with the crew leader or farm labor contractor. However, members of the employer's immediate family are not included. (A “man-day” is any day during which an employee does agricultural work for 1 hour or more.)</P> <FTNT> <P> <SU>1</SU> Sections 3(u) and 13(a)(6) of the Fair Labor Standards Act (29 U.S.C. 201 <E T="03">et seq.</E>) set forth and define the term “man-day.”</P> </FTNT> <P>(b) If it can reasonably be anticipated that the employer will use more than 500 man-days of agricultural labor in at least one calendar quarter of the current calendar year, the employer shall maintain and preserve for each employee records containing all the information and data required by § 516.2(a) (1), (2) and (4) and, in addition, the following:</P> <P>(1) Symbols or other identifications separately designating those employees who are</P> <P>(i) Members of the employer's immediate family as defined in section 13(a)(6)(B) of the Act,</P> <P>(ii) Hand harvest laborers as defined in section 13(a)(6) (C) or (D), and</P> <P>(iii) Employees principally engaged in the range production of livestock as defined in section 13(a)(6)(E).</P> <P>(2) For each employee, other than members of the employer's immediate family, the number of man-days worked each week or each month.</P> <P>(c) For the entire year following a year in which the employer used more than 500 man-days of agricultural labor in any calendar quarter, the employer shall maintain, and preserve in accordance with §§ 516.5 and 516.6, for each covered employee (other than members of the employer's immediate family, hand harvest laborers and livestock range employees as defined in sections 13(a)(6) (B), (C), (D), and (E) of the Act) records containing all the information and data required by § 516.2(a) except paragraphs (a) (3) and (8).</P> <P>(d) In addition to other required items, the employer shall keep on file with respect to each hand harvest laborer as defined in section 13(a)(6)(C) of the Act for whom exemption is taken, a statement from each such employee showing the number of weeks employed in agriculture during the preceding calendar year.</P> <P>(e) With respect to hand harvest laborers as defined in section 13(a)(6)(D), for whom exemption is taken, the employer shall maintain in addition to paragraph (b) of this section, the minor's date of birth and name of the minor's parent or person standing in place of the parent.</P> <P>(f) Every employer (other than parents or guardians standing in the place of parents employing their own child or a child in their custody) who employs in agriculture any minor under 18 years of age on days when school is in session or on any day if the minor is employed in an occupation found to be hazardous by the Secretary shall maintain and preserve records containing the following data with respect to each and every such minor so employed:</P> <P>(1) Name in full,</P> <P>(2) Place where minor lives while employed. If the minor's permanent address is elsewhere, give both addresses,</P> <P>(3) Date of birth.</P> <P>(g) Where a farmer and a bona fide independent contractor or crew leader <PRTPAGE P="133"/>are joint employers of agricultural laborers, each employer is responsible for maintaining and preserving the records required by this section. Duplicate records of hours and earnings are not required. The requirements will be considered met if the employer who actually pays the employees maintains and preserves the records specified in paragraphs (c) and (f) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 516.34</SECTNO> <SUBJECT>Exemption from overtime pay for time spent by certain employees receiving remedial education pursuant to section 7(q) of the Act.</SUBJECT> <P>With respect to each employee exempt from the overtime pay requirements of the Act for time spent receiving remedial education pursuant to section 7(q) of the Act and § 778.603 of this title, the employer shall maintain and preserve records containing all the information and data required by § 516.2 and, in addition, shall also make and preserve a record, either separately or as a notation on the payroll, showing the hours spent each workday and total hours each workweek that the employee is engaged in receiving such remedial education that does not include any job-specific training but that is designed to provide reading and other basic skills at or below the eighth-grade level or to fulfill the requirements for a high school diploma (or General Educational Development certificate), and the compensation (at not less than the employee's regular rate of pay) paid each pay period for the time so engaged.</P> <CITA>[56 FR 61101, Nov. 29, 1991]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 519</EAR> <HD SOURCE="HED">PART 519—EMPLOYMENT OF FULL-TIME STUDENTS AT SUBMINIMUM WAGES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Retail or Service Establishments, and Agriculture</HD> <SECHD>Sec.</SECHD> <SECTNO>519.1</SECTNO> <SUBJECT>Applicability of the regulations in this subpart.</SUBJECT> <SECTNO>519.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>519.3</SECTNO> <SUBJECT>Application for a full-time student certificate.</SUBJECT> <SECTNO>519.4</SECTNO> <SUBJECT>Procedure for action upon an application.</SUBJECT> <SECTNO>519.5</SECTNO> <SUBJECT>Conditions governing issuance of full-time student certificates.</SUBJECT> <SECTNO>519.6</SECTNO> <SUBJECT>Terms and conditions of employment under full-time student certificates and under temporary authorization.</SUBJECT> <SECTNO>519.7</SECTNO> <SUBJECT>Records to be kept.</SUBJECT> <SECTNO>519.8</SECTNO> <SUBJECT>Amendment or replacement of a full-time student certificate.</SUBJECT> <SECTNO>519.9</SECTNO> <SUBJECT>Reconsideration and review.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Institutions of Higher Education</HD> <SECTNO>519.11</SECTNO> <SUBJECT>Applicability of the regulations in this subpart.</SUBJECT> <SECTNO>519.12</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>519.13</SECTNO> <SUBJECT>Application for a full-time student certificate.</SUBJECT> <SECTNO>519.14</SECTNO> <SUBJECT>Procedure for action upon an application.</SUBJECT> <SECTNO>519.15</SECTNO> <SUBJECT>Conditions governing issuance of full-time student certificates.</SUBJECT> <SECTNO>519.16</SECTNO> <SUBJECT>Terms and conditions of employment under full-time student certificates and under temporary authorization.</SUBJECT> <SECTNO>519.17</SECTNO> <SUBJECT>Records to be kept.</SUBJECT> <SECTNO>519.18</SECTNO> <SUBJECT>Amendment or replacement of a full-time student certificate.</SUBJECT> <SECTNO>519.19</SECTNO> <SUBJECT>Reconsideration and review.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Secs. 11 and 14, 52 Stat. 1068; sec. 11, 75 Stat. 74; secs. 501 and 602, 80 Stat. 843, 844 (29 U.S.C. 211, 214).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>40 FR 6329, Feb. 11, 1975, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Retail or Service Establishments, and Agriculture</HD> <SECTION> <SECTNO>§ 519.1</SECTNO> <SUBJECT>Applicability of the regulations in this subpart.</SUBJECT> <P>(a) <E T="03">Statutory provisions.</E> Under section 14 of the Fair Labor Standards Act of 1938, as amended, and the authority and responsibility delegated to him/her by the Secretary of Labor (36 FR 8755) and by the Assistant Secretary for Employment Standards (39 FR 33841) the Administrator of the Wage and Hour Division is authorized and directed, to the extent necessary in order to prevent curtailment of opportunities for employment, to provide by regulation or order for the employment, under certificates, of full-time students in retail or service establishments, or in agriculture. That section contains provisions requiring a wage rate in such certificates of not less than 85 percent of the minimum wage applicable under section 6 of the Act, limiting weekly hours of employment, stipulating compliance with the applicable child-labor standards, and safeguarding against the reduction of the full-time employment opportunities of employees other <PRTPAGE P="134"/>than full-time students employed under certificates.</P> <P>(b) <E T="03">Source of limitations.</E> Some of the limitations in this subpart are specifically required in section 14(b) of the Act. The other limitations implement the provisions in that section relating to employment opportunities, <E T="03">i.e.,</E> the “extent necessary to prevent curtailment of opportunities for employment” and the avoidance of a “substantial probability of reducing the full-time employment opportunities of persons other than those to whom the minimum wage rate authorized” under section 14(b) is applicable.</P> <CITA>[40 FR 6329, Feb. 11, 1975; 40 FR 22546, May 23, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 519.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Full-time students.</E> A <E T="03">full-time student</E> for the purpose of this subpart is defined as a student who receives primarily daytime instruction at the physical location of a bona fide educational institution, in accordance with the institution's accepted definition of a full-time student. A full-time student retains that status during the student's Christmas, summer and other vacations. An individual who was such a student immediately prior to vacation will be presumed not to have discontinued such status during vacation if local law requires his/her attendance at the end of the vacation. In the absence of such requirement his/her status during vacation will be governed by his/her intention as last communicated to his/her employer. The phrase in section 14(b) of the statute “regardless of age but in compliance with applicable child-labor laws,” among other things, restricts the employment in a retail or service establishment to full-time students who are at least 14 years of age because of the application of section 3(1) of the Act. There is a minimum age requirement of 16 years in agriculture for employment during school hours and in any occupation declared hazardous by the Secretary of Labor (subpart E-1 of part 570 of this title.) In addition, there is a minimum age restriction of 14 years generally for employment in agriculture of a full-time student outside school hours for the school district where such employee is living while so employed, except (1) Minors 12 or 13 years of age may be employed with written parental or guardian consent or they may work on farms where their parents or guardians are employed, and (2) minors under 12 may work on farms owned or operated by their parents or with parental or guardian consent on farms whose employees are exempt from section 6 by section 13 (a)(6)(A) of the Act.</P> <P>(b) <E T="03">Bona fide educational institution.</E> A <E T="03">bona fide educational institution</E> is ordinarily an accredited institution. However, a school which is not accredited may be considered a <E T="03">bona fide educational institution</E> in exceptional circumstances, such as when the school is too recently established to have received accreditation.</P> <P>(c) <E T="03">Retail or service establishment. Retail or service establishment</E> means a retail or service establishment as defined in section 13(a)(2) of the Fair Labor Standards Act. The statutory definition is interpreted in part 779 of this chapter.</P> <P>(d) <E T="03">Agriculture. Agriculture</E> means agriculture as defined in section 3(f) of the Fair Labor Standards Act. The statutory definition is interpreted in part 780 of this chapter.</P> <P>(e) <E T="03">Student hours of employment.</E> Student hours of employment means hours during which students are employed under full-time student certificates issued under this part and is distinguished from <E T="03">hours of employment of students</E>.</P> <P>(f) <E T="03">Employer.</E> Section 519.4 permits an agricultural or retail or service establishment employer to employ not more than six full-time students at subminimum wages on forwarding an application but before certification. For this purpose, the term <E T="03">employer</E> looks to the highest structure of ownership or control, and hence may be more than a single retail or service establishment or farm, <E T="03">e.g.,</E> the controlling conglomerate or enterprise would be the <E T="03">employer.</E> With respect to public employers who operate retail or service establishments (see 29 CFR part 779), the <E T="03">employer</E> means the highest structure of <PRTPAGE P="135"/>control such as the State, municipality, county or other political subdivision.</P> <CITA>[40 FR 6329, Feb. 11, 1975, as amended at 42 FR 58745, Nov. 11, 1977; 43 FR 29000, July 5, 1978]</CITA> </SECTION> <SECTION> <SECTNO>§ 519.3</SECTNO> <SUBJECT>Application for a full-time student certificate.</SUBJECT> <P>(a) Whenever the employment of full-time students working outside of school hours in agriculture or in a retail or service establishment at wages lower than the minimum applicable under section 6 of the Fair Labor Standards Act is believed to be necessary to prevent curtailment of opportunities for employment and employment of them will not create a substantial probability of reducing the full-time employment opportunities of the other workers, an application for a certificate may be filed by their employer with the appropriate Regional Office of the Wage and Hour Division (or the Denver, Colorado Area Office for Colorado, North Dakota, and South Dakota; the Salt Lake City, Utah area Office for Montana, Utah, and Wyoming; and the Caribbean Office for the area it covers). Such application shall be signed by an authorized representative of the employer.</P> <P>(b) The application must be filed in duplicate on official forms or exact copies thereof. The forms are available at the offices mentioned in paragraph (a) of this section. The application must contain the information as to the type of products sold or services rendered by the establishment, hours of employment during the preceding twelve-month period or data from previous certificates (or applications) as pertinent to the application, and other information for which request is made on the form.</P> <P>(c) Separate application must be made for each farm or establishment in which authority to employ full-time students at subminimum wage rates is sought.</P> <P>(d) Application for renewal of a certificate shall be made either on the same type of form as is used for a new application or on an alternate official form. No certificate in effect shall expire until action on such an application shall have been finally determined, provided that such application has been properly executed, and is received by the office specified in paragraph (a) of this section not less than 15 nor more than 30 days prior to the expiration date. A properly executed application is one which fully and accurately contains the information required on the form, and the required certification by an authorized representative of the employer.</P> </SECTION> <SECTION> <SECTNO>§ 519.4</SECTNO> <SUBJECT>Procedure for action upon an application.</SUBJECT> <P>(a) Under certain conditions, an agricultural or retail or service establishment employer may obtain temporary authorization to employ full-time students at subminimum wages. These conditions are: (1) Attestation by the employer that he/she will employ no more than six full-time students at subminimum wages on any workday and that the employment of such students will not reduce the full-time employment opportunities of other persons, and (2) forwarding a properly completed application to the Wage and Hour Division not later than the start of such employment, and (3) posting a notice of such filing at the place(s) specified in paragraph (a) of § 519.6 of this subpart, and (4) compliance during the temporary authorization period with the requirements set forth in paragraphs (b) and (j) through (o) of § 519.6 of this subpart.</P> <P>(b) Temporary authorization under the conditions set forth in paragraph (a) of this section is effective from the date the application is forwarded to the Wage and Hour Division in conformance with § 519.3 of this subpart. This authorization shall continue in effect for one year from the date of forwarding of the application unless, within 30 days the Administrator or his/her authorized representative denies the application, issues a certificate with modified terms and conditions, or expressly extends the 30-day period of review.</P> <P>(c) Upon receipt of an application for a certificate, the officer authorized to act upon such application shall issue a certificate if the terms and conditions specified in this subpart are satisfied. <PRTPAGE P="136"/>To the extent he/she deems appropriate, the authorized officer may provide an opportunity to other interested persons to present data, views, or argument on the application prior to granting or denying a certificate.</P> <P>(d) Until April 30, 1976, if a certificate is issued, there shall be published in the <E T="04">Federal Register</E> a general statement of the terms of such certificate together with a notice that, pursuant to § 519.9, for 45 days following such publication any interested person may file a written request for reconsideration or review. Thereafter, applications and certificates will be available for examination in accordance with applicable regulations in Washington, DC, and in the appropriate Regional Office of the Wage and Hour Division (or the Denver, Colorado Area Office for Colorado, North Dakota, and South Dakota; the Salt Lake City, Utah Area Office for Montana, Utah, and Wyoming; and the Caribbean Office for the area it covers) for establishments in its area. A period of 60 days will be provided after certificate issuance during which any interested person may file a written request for reconsideration or review.</P> <P>(e) If a certificate is denied, notice of such denial shall be sent to the employer, stating the reason or reasons for the denial. Such denial shall be without prejudice to the filing of any subsequent application.</P> <CITA>[40 FR 6329, Feb. 11, 1975, as amended at 42 FR 58745, Nov. 11, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 519.5</SECTNO> <SUBJECT>Conditions governing issuance of full-time student certificates.</SUBJECT> <P>Certificates authorizing the employment of full-time students at subminimum wage rates shall not be issued unless the following conditions are met:</P> <P>(a) Full-time students are available for employment at subminimum rates; the granting of a certificate is necessary in order to prevent curtailment of opportunities for employment.</P> <P>(b) The employment of more than six full-time students by an employer will not create a substantial probability of reducing the full-time employment opportunities for persons other than those employed under such certificates.</P> <P>(c) Abnormal labor conditions such as a strike or lockout do not exist at the farm or establishment for which a full-time student certificate is requested.</P> <P>(d) The data given on the application are accurate and based on available records.</P> <P>(e) The farms or establishments on whose experience the applicant relies meet the requirements of paragraph (h) of § 519.6.</P> <P>(f) There are no serious outstanding violations of the provisions of a full-time student certificate previously issued to the employer, nor have there been any serious violations of the Fair Labor Standards Act (including Child-Labor Regulation No. 3 and the Hazardous Occupations Orders published in part 570 of this chapter) which provide reasonable grounds to conclude that the terms of a certificate may not be compiled with, if issued.</P> <P>(g) The subminimum wage rate(s) proposed to be paid full-time students under temporary authorization or under certificate is not less than 85 percent of the minimum wage applicable under section 6 of the Act.</P> <P>(h) Certificates will not be issued where such issuance will result in a reduction of the wage rate paid to a current employee, including current student employees.</P> <CITA>[40 FR 6329, Feb. 11, 1975, as amended at 42 FR 58745, Nov. 11, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 519.6</SECTNO> <SUBJECT>Terms and conditions of employment under full-time student certificates and under temporary authorization.</SUBJECT> <P>(a) A full-time student certificate will not be issued for a period longer than 1 year, nor will it be issued retroactively. It shall specify its effective and expiration dates. A copy of the certificate shall be posted during its effective period in a conspicuous place or places in the establishment or at the farm readily visable to all employees, for example, adjacent to the time clock or on the bulletin board used for notices to the employees. If temporary authorization is in effect under paragraph (a) of § 519.4 of this subpart, a notice thereof shall be similarly posted during the effective period of such authorization.<PRTPAGE P="137"/> </P> <P>(b) Full-time students may not be employed under a certificate at less than 85 percent of the minimum wage applicable under section 6 of the Act.</P> <P>(c) For retail or service establishment employers or agricultural employers, the allowable extent of full-time student employment under certificates varies depending on whether: (1) The employer proposes to employ no more than six full-time students at subminimum wages on any workday, (2) the applicant requests authority for not more than 10 percent of the total hours of all employees during any month, or (3) the applicant requests authority for more than 10 percent of the total hours during any month. (For agricultural employers, the month of full-time student certificated employment may vary somewhat from the month in a previous year on which the certificate is based, depending on seasonal factors.)</P> <P>(d) <E T="03">Retail or service establishment employers or agricultural employers requesting authorization to employ not more than six full-time students at subminimum wages on any workday.</E> An application from such an applicant provides temporary authorization for the employment of full-time students at subminimum wages: <E T="03">Provided,</E> The conditions set forth in paragraph (a) of § 519.4 of this subpart are met. Upon review of the application by the Administration or his/her authorized representative, the extent of the temporary authority may be modified.</P> <P>(e) <E T="03">Applicants requesting authorization for not more than 10 percent of the total hours of all employees during any month.</E> For such an applicant, certificates may authorize the employment of full-time student at subminimum wages for up to 10 percent of the total hours of all employees during any month, regardless of past practice of employing students. (Note: An establishment which has not previously held a certificate may be authorized 10 percent of the total hours of all employees during any month. Applicants requesting authority under this paragraph need not refer to paragraphs (f), (g), or (h) of this section.)</P> <P>(f) <E T="03">Applicants requesting authorization for more than 10 percent of the total monthly hours of all employees during any month with records of hours of employment of students and coverage by the Act prior to May 1974.</E> For such an applicant, certificates may not authorize full-time student employment at subminimum wages in excess of the highest ratio under any of these three formulas: (1) The proportion of student hours of employment (<E T="03">i.e.,</E> of full-time students under certificates) to total hours of all employees for the corresponding month of the preceding twelve-month period; (2) the maximum proportion of student hours of employment to total hours of all employees (in any corresponding month), applicable to the issuance of full-time student certificates before May 1974; or (3) 10 percent of the total hours of all employees, during any month. (Note: An establishment which is entitled to monthly allowances ranging from 5 to 20 percent may be authorized 10 percent for those months which were less than 10 percent and retain the higher allowances for those months above 10 percent.)</P> <P>(g) <E T="03">Applicants requesting authorization for more than 10 percent of the total hours of all employees during any month with records of hours of employment of students and new coverage under the 1974 Amendments.</E> For such an applicant, the highest permissible allowance under a certificate during any month is the highest ratio under any of these three formulas:</P> <P>(1) The proportion of hours of employment of full-time students to total hours of all employees during the corresponding month from May 1973 through April 1974;</P> <P>(2) The proportion of student hours of employment (<E T="03">i.e.,</E> of hours of full-time students under certificates) to total hours of all employees during the corresponding month of the preceding twelve-month period (an alternative which is not applicable to all months of the year until 12 months after May 1, 1974); or</P> <P>(3) 10 percent of the total hours of all employees, during any month. (See notes under paragraphs (e) and (f) of this section.)</P> <P>(h) <E T="03">Applicants requesting authorization for more than 10 percent of the total hours of all employees during any month without records of student hours worked.</E> For <PRTPAGE P="138"/>such an applicant, the permissible proportion under certificate of full-time student hours at subminimum wages to total hours of all employees is based on the “practice” during the preceding twelve-month period of: (1) Similar establishments of the same employer in the same general metropolitan areas in which such establishment is located: (2) similar establishments in the same or nearby communities if such establishment is not in a metropolitan area; or (3) other establishments of the same general character operating in the community or the nearest comparable community. (“Practice” means either the certificate allowances or the proportion between the actual student hours of employment to the total hours of all employees.)</P> <P>(i) An overestimate of total hours of employment of all employees for a current month resulting in the employment of the full-time students in excess of the hours authorized in paragraph (e), (f), (g), or (h) of this section may be corrected by compensating them for the difference between the subminimum wages actually paid and the applicable minimum under section 6 of the Act for the excess hours. Similarly, if an agricultural employer or a retail or service establishment employer has authorization to employ no more than six full-time students at subminimum wages on any workday but exceeds that number, the excess may be corrected by compensating the additional full-time students for the difference between the subminimum wages actually paid and the applicable minimum under section 6 of the Act. This additional compensation shall be paid on the regular payday next after the end of the period.</P> <P>(j) Full-time students shall not be permitted to work at subminimum wages for more than 8 hours a day, nor for more than 40 hours a week when school is not in session, nor more than 20 hours a week when school is in session (apart from a full-time student's summer vacation), except that when a full-day school holiday occurs on a day when the establishment is open for business, the weekly limitation on the maximum number of hours which may be worked shall be increased by 8 hours for each such holiday but in no event shall the 40-hour limitation be exceeded. (Note: School is considered to be in session for a student attending summer school.) Whenever a full-time student is employed for more than 20 hours in any workweek in conformance with this paragraph, the employer shall note in his/her payroll records that school was not in session during all or part of that workweek or the student was in his/her summer vacation.</P> <P>(k) Neither oppressive child labor as defined in section 3(1) of the Act and regulations issued under the Act nor any other employment in violation of a Federal, State or local child labor law or ordinance shall come within the terms of any certificate issued under this subpart.</P> <P>(l) Full-time students shall be employed at subminimum wages under this subpart only outside of their school hours, <E T="03">i.e.,</E> only outside of the scheduled hours of instruction of the individual student, or, in the case of agriculture, only outside of school hours for the school district where the employee is living while so employed, if the employee is under 16 years of age.</P> <P>(m) No full-time student shall be hired under a full-time student certificate while abnormal labor conditions, such as a strike or lockout, exist at the establishment or farm.</P> <P>(n) No provision of any full-time student certificate shall excuse noncompliance with higher standards applicable to full-time students which may be established under the Walsh-Healey Public Contracts Act or any other Federal law, State law, local ordinance, or union or other agreement. Thus, certificates issued under this law have no application to employment under the Service Contract Act.</P> <P>(o) No full-time student certificate shall apply to any employee to whom a certificate issued under section 14 (a) or (c) of the Act has application.</P> <CITA>[40 FR 6329, Feb. 11, 1975; 40 FR 22546, May 23, 1975, as amended at 42 FR 58745, Nov. 11, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 519.7</SECTNO> <SUBJECT>Records to be kept.</SUBJECT> <P>(a) The employer shall designate each worker employed as a full-time student under a full-time student certificate at subminimum wages, as provided under part 516 of this chapter.<PRTPAGE P="139"/> </P> <P>(b)(1) In addition to the records required under part 516 of this chapter and this subpart, the employer shall keep the records specified in paragraph (b) (2) and (3) of this section specifically relating to full-time students employed at subminimum wages.</P> <P>(2) The employer shall obtain at the time of hiring and keep in his records information from the school attended that the employee receives primarily daytime instruction at the physical location of the school in accordance with the school's accepted definition of a full-time student. During a period between attendance at different schools not longer than the usual summer vacation, a certificate from the school next to be attended that the student has been accepted as a full-time student will satisfy the requirements of this paragraph (b)(2).</P> <P>(3) The employer operating any farm or retail or service establishment shall maintain records of the monthly hours of employment of full-time students at subminimum wages and of the total hours of employment during the month of all employees in the establishment except for those employed in agriculture who come within one of the other exemptions from the minimum wage provisions of the Act.</P> <P>(c) The records required in this section, including a copy of any full-time student certificate issued, shall be kept for a period of 3 years at the place and made available for inspection, both as provided in part 516 of this chapter.</P> <CITA>[40 FR 6329, Feb. 11, 1975; 40 FR 22546, May 23, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 519.8</SECTNO> <SUBJECT>Amendment or replacement of a full-time student certificate.</SUBJECT> <P>In the absence of an objection by the employer (which may be resolved in the manner provided in part 528 of this chapter), the authorized officer upon his/her own motion may amend the provisions of a certificate when it is necessary by reason of the amendment of these regulations, or may withdraw a certificate and issue a replacement certificate when necessary to correct omissions or apparent defects in the original certificate.</P> </SECTION> <SECTION> <SECTNO>§ 519.9</SECTNO> <SUBJECT>Reconsideration and review.</SUBJECT> <P>(a) Within 15 days after being informed of a denial of an application for a full-time student certificate or within 45 days after <E T="04">Federal Register</E> publication of a statement of the terms of the certificate granted (subsequent to April 30, 1976, within 60 days after a certificate is granted), any person aggrieved by the action of an authorized officer in denying or granting a certificate may:</P> <P>(1) File a written request for reconsideration thereof by the authorized officer who made the decision in the first instance, or</P> <P>(2) File with the Administrator a written request for review.</P> <P>(b) A request for reconsideration shall be accompanied by a statement of the additional evidence which the applicant believes may materially affect the decision and a showing that there were reasonable grounds for failure to present such evidence in the original proceedings.</P> <P>(c) Any person aggrieved by the reconsideration determination of an authorized officer may, within 15 days after such determination, file with the Administrator a written request for review.</P> <P>(d) A request for review shall be granted where reasonable grounds for the review are set forth in the request.</P> <P>(e) If a request for reconsideration or review is granted, the authorized officer or the Administrator may, to the extent he/she deems it appropriate, afford other interested persons an opportunity to present data, views, or argument.</P> <CITA>[40 FR 6329, Feb. 11, 1975; 40 FR 22546, May 23, 1975]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Institutions of Higher Education</HD> <SECTION> <SECTNO>§ 519.11</SECTNO> <SUBJECT>Applicability of the regulations in this subpart.</SUBJECT> <P>(a) <E T="03">Statutory provisions.</E> Under section 14 of the Fair Labor Standards Act of 1938, as amended, and the authority and responsibility delegated to him/her by the Secretary of Labor (36 FR 8755) and by the Assistant Secretary for Employment Standards (39 FR 3384l), the Administrator of the Wage and Hour <PRTPAGE P="140"/>Division is authorized and directed, to the extent necessary in order to prevent curtailment of opportunities for employment, to provide by regulation or order for the employment, under certificates, of full-time students in institutions of higher education. That section contains provisions requiring a wage rate in such certificates of not less than 85 percent of the minimum wage applicable under section 6 of the Act, limiting weekly hours of employment, stipulating compliance with the applicable child-labor standards, and safeguarding against the reduction of the full-time employment opportunities of employees other than full-time students employed under certificates.</P> <P>(b) <E T="03">Source of limitations.</E> Some of the limitations expressed in this subpart are specifically required in section 14(b) of the Act. The other limitations implement the provisions relating to employment opportunities, <E T="03">i.e.,</E> the “extent necessary in order to prevent curtailment of opportunities for employment” and the requirement that the regulations shall “prescribe standards and requirements to insure that this paragraph will not create a substantial probability of reducing the full-time employment opportunities of persons other than those to whom the minimum wage rate authorized by” section 14(b) of the Act is applicable.</P> <CITA>[40 FR 6329, Feb. 11, 1975; 40 FR 22546, May 23, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 519.12</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Full-time students.</E> A <E T="03">full-time student</E> for the purpose of this subpart is defined as one who meets the accepted definition of a full-time student of the institution of higher education which employs him/her. A full-time student retains that status during the student's Christmas, summer and other vacations, even when a student is taking one or more courses during his/her summer or other vacation. The phrase in section 14(b) of the statute “regardless of age but in compliance with applicable child labor laws”, among other things restricts the employment in an institution of higher education to full-time students who are at least 14 years of age because of the application of section 3(1) of the Act.</P> <P>(b) <E T="03">Institution of higher education.</E> An <E T="03">institution of higher education</E> is an institution above the secondary level, such as a college or university, a junior college, or a professional school of engineering, law, library science, social work, etc. It is one that is recognized by a national accrediting agency or association as determined by the U.S. Commissioner of Education. Generally, an institution of higher education: (1) Admits as regular students only individuals having a certificate of graduation from a high school or the recognized equivalent of such a certificate; and (2) is legally authorized within a State to provide a program of education beyond high school; and (3) provides an educational program for which it normally awards a bachelor's degree, or provides not less than a two-year program which is acceptable for full credit toward such a degree or offers a two-year program in engineering, mathematics, or the physical or biological sciences which is designed to prepare the student to work as a technician and at a semi-professional level in engineering, scientific, or other technological fields which require the understanding and application of basic engineering, scientific, or mathematical principles of knowledge.</P> <CITA>[40 FR 6329, Feb. 11, 1975; 40 FR 22546, May 23, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 519.13</SECTNO> <SUBJECT>Application for a full-time student certificate.</SUBJECT> <P>(a) Whenever the employment of its full-time students working in an institution at wages lower than the minimum wage applicable under section 6 of the Fair Labor Standards Act is believed to be necessary to prevent curtailment of opportunities for employment and employment of them will not create a substantial probability of reducing the full-time employment opportunities of other workers, an application for a certificate may be filed by their employer with the appropriate Regional Office of the Wage and Hour Division (or the Denver, Colorado Area Office for Colorado, North Dakota and South Dakota; the Salt Lake City, Utah Area Office for Montana, Utah and Wyoming; and the Caribbean Office <PRTPAGE P="141"/>for the area it covers). Such an application shall be signed by an authorized representative of the employer.</P> <P>(b) The application provided for under § 519.14 must be filed in duplicate on official forms or exact copies thereof. The forms are available at the offices mentioned in paragraph (a) of this section. The application must contain the information on numbers of full-time students and full-time employees (other than full-time students), minimum full-time student wages, and other information for which request is made on the form.</P> <P>(c) Separate application must be made for each campus of an institution of higher education for which authority to employ full-time students at subminimum wage rates is sought.</P> <P>(d) Application for renewal of a certificate shall be made on the same type of form as is used for a new application. No certificate in effect shall expire until action on such an application shall have been finally determined, provided that such application has been properly executed, and is received by the office specified in paragraph (a) of this section not less than 15 nor more than 30 days prior to the expiration date. A properly executed application is one which fully and accurately contains the information required on the form, and the required certification by an authorized representative of the employer.</P> <CITA>[40 FR 6329, Feb. 11, 1975; 40 FR 22546, May 23, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 519.14</SECTNO> <SUBJECT>Procedure for action upon an application.</SUBJECT> <P>(a) Under certain conditions, an institution of higher education has temporary authorization to employ full-time students at subminimum wages. These conditions are:</P> <P>(1) Absence of an effective finding by the Secretary that the institution has been employing full-time students under certificates in violation of the requirements of section 14(b)(3) of the Act or of these regulations; and</P> <P>(2) Forwarding of a properly completed application to the Wage and Hour Division not later than the start of employment of full-time students at subminimum wages; and</P> <P>(3) Posting a notice of such filing at the place(s) specified in paragraph (a) of § 519.16 of this subpart; and</P> <P>(4) Compliance during the temporary authorization period with the requirements set forth in paragraphs (b) and (e) through (j) of § 519.16 of this subpart.</P> <P>(b) Temporary authorization under the conditions set forth in paragraph (a) of this section is effective from the date the application is forwarded to the Wage and Hour Division in conformance with § 519.13 of this subpart. This authorization shall continue in effect for one year from the date of forwarding of the application unless, within 30 days, the Administrator or his/her authorized representative denies the application, issues a certificate with modified terms and conditions, or expressly extends the 30-day period of review.</P> <P>(c) Upon receipt of an application for a certificate, the officer authorized to act upon such application shall issue a certificate if the terms and conditions specified in this subpart are satisfied. To the extent he/she deems appropriate, the authorized officer may provide an opportunity to other interested persons to present data, views, or argument on the application prior to granting or denying a certificate.</P> <P>(d) Until April 30, 1976, if a certificate is issued there shall be published in the <E T="04">Federal Register</E> a general statement of the terms of such certificate together with a notice that, pursuant to § 519.19, for 45 days following such publication any interested person may file a written request for reconsideration or review. Thereafter, applications and certificates will be available for examination in accordance with applicable regulations in Washington, DC, and in the appropriate Regional Office of the Wage and Hour Division (or the Denver, Colorado Area Office for Colorado, North Dakota, and South Dakota; the Salt Lake City, Utah Area Office for Montana, Utah, and Wyoming; and the Caribbean Office for the area it covers) for institutions of higher education in its area. A period of 60 days will be provided after certificate issuance during which any interested person may file a written request for reconsideration or review.<PRTPAGE P="142"/> </P> <P>(e) If a certificate is denied, notice of such denial shall be sent to the employer, stating the reason or reasons for the denial. Such denial shall be without prejudice to the filing of any subsequent application.</P> </SECTION> <SECTION> <SECTNO>§ 519.15</SECTNO> <SUBJECT>Conditions governing issuance of full-time student certificates.</SUBJECT> <P>Certificates authorizing the employment of full-time students at subminimum wage rates shall not be issued unless the following conditions are met:</P> <P>(a) Full-time students are available for employment at subminimum rates; the granting of a certificate is necessary in order to prevent curtailment of opportunities for employment.</P> <P>(b) The employment of full-time students will not create a substantial probability of reducing the full-time employment opportunities for persons other than those employed under such certificates.</P> <P>(c) Abnormal labor conditions such as a strike or lockout do not exist in the units of the campus for which a full-time student certificate is requested.</P> <P>(d) The data given on the application are accurate and based on available records.</P> <P>(e) There are no serious outstanding violations of the provisions of a full-time student certificate previously issued to the employer, nor have there been any serious violations of the Fair Labor Standards Act (including Child-Labor Regulation No. 3 and the Hazardous Occupations Orders published in part 570 of this chapter) which provide reasonable grounds to conclude that the terms of a certificate may not be complied with, if issued.</P> <P>(f) The subminimum wage rate(s) proposed to be paid full-time students under temporary authorization or under certificate is not less than 85 percent of the minimum wage applicable under section 6 of the Act.</P> <P>(g) Full-time students are not to be employed by an institution of higher education at subminimum wages under this subpart in unrelated trades or businesses as defined and applied under sections 511 through 515 of the Internal Revenue Code, such as apartment houses, stores, or other businesses not primarily catering to the students of the institution.</P> <P>(h) Certificates will not be issued where such issuance will result in a reduction of the wage rate paid to a current employee, including current student employees.</P> </SECTION> <SECTION> <SECTNO>§ 519.16</SECTNO> <SUBJECT>Terms and conditions of employment under full-time student certificates and under temporary authorization.</SUBJECT> <P>(a) A full-time student certificate will not be issued for a period longer than 1 year, nor will it be issued retroactively. It shall specify its effective and expiration dates. A copy of the certificate shall be posted during its effective period in a conspicuous place or places in the institution of higher education readily visible to all employees, for example, adjacent to the time clock or on the bulletin board used for notices to the employees. If temporary authorization is in effect under paragraph (a) of § 519.14, a notice thereof shall be similarly posted during the effective period of such authorization.</P> <P>(b) Full-time students may not be employed under a certificate at less than 85 percent of the minimum wage applicable under section 6 of the Act.</P> <P>(c) An institution of higher education shall not employ full-time students at subminimum wages under this subpart in unrelated trades or businesses as defined and applied under sections 511 through 515 of the Internal Revenue Code, such as apartment houses, stores, or other businesses not primarily catering to the students of the institution.</P> <P>(d) An institution of higher education subject to a finding by the Secretary that it is in violation of the requirements of section 14(b)(3) of the Act or of this subpart must be issued a full-time student certificate before it can employ full-time students at wages below those required by section 6 of the Act. The Administrator or his/her authorized representative will not issue a full-time student certificate to such an institution without adequate assurances and safeguards to insure that the violations found by the Secretary will not continue.</P> <P>(e) Full-time students shall not be permitted to work at subminimum <PRTPAGE P="143"/>wages for more than 8 hours a day, nor for more than 40 hours a week when school is not in session, nor more than 20 hours a week when school is in session (apart from a full-time student's summer vacation), except that when a full-day school holiday occurs the weekly limitation on the maximum hours which may be worked shall be increased by 8 hours for each such holiday but in no event shall the 40-hour limitation be exceeded. (Note: School is considered to be in session for a student taking one or more courses during a summer or other vacation.) Whenever a full-time student is employed for more than 20 hours in any workweek in conformance with this paragraph, the employer shall note in his/her payroll that school was not in session during all or part of that workweek or the student was in his/her summer vacation.</P> <P>(f) Neither oppressive child labor as defined in section 3(1) of the Act and regulations issued under the Act nor any other employment in violation of a Federal, State or local child labor law or ordinance shall come within the terms of any certificate issued under this subpart.</P> <P>(g) Full-time students shall be employed at subminimum wages under this subpart only outside of their school hours, <E T="03">i.e.,</E> only outside of the scheduled hours of instruction of the individual full-time student.</P> <P>(h) No full-time student shall be hired under a full-time student certificate for work in a unit or units of the campus where abnormal labor conditions, such as a strike or lockout, exist.</P> <P>(i) No provision of any full-time student certificate shall excuse noncompliance with higher standards applicable to full-time students which may be established under the Walsh-Healey Public Contracts Act or any other Federal law, State law, local ordinance, or union or other agreement. Thus, certificates issued under this subpart have no application to employment under the Service Contract Act.</P> <P>(j) No full-time student certificate shall apply to any employee to whom a certificate issued under section 14(a) or (c) of the Act has application.</P> <CITA>[40 FR 6329, Feb. 11, 1975; 40 FR 22546, May 23, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 519.17</SECTNO> <SUBJECT>Records to be kept.</SUBJECT> <P>(a) The employer shall designate each worker employed as a full-time student under a full-time student certificate at subminimum wages, as provided under part 516 of this chapter.</P> <P>(b)(1) In addition to the records required under part 516 of this chapter and this subpart, the employer shall keep the records specified in paragraphs (b)(2) and (3) of this section specifically relating to full-time students employed at subminimum wages.</P> <P>(2) The institution shall obtain at the time of hiring and keep in its records information that the employee is its full-time student at the physical location of the institution in accordance with its accepted definition of a full-time student. During a period between attendance at different schools not longer than the usual summer vacation, the acceptance by the institution of the full-time student for its next term will satisfy the requirements of (b)(2) of this section.</P> <P>(3) An institution of higher education shall maintain records showing the total number of all full-time students of the type defined in § 519.12(a) employed at the campus of the institution at less than the minimum wage otherwise applicable under the Act, and the total number of all employees at the campus to whom the minimum wage provision of the Act applies.</P> <P>(c) The records required in this section, including a copy of any full-time student certificate issued, shall be kept for a period of 3 years at the place and made available for inspection, both as provided in part 516 of this chapter.</P> <CITA>[40 FR 6329, Feb. 11, 1975; 40 FR 22546, May 23, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 519.18</SECTNO> <SUBJECT>Amendment or replacement of a full-time student certificate.</SUBJECT> <P>In the absence of an objection by the employer (which may be resolved in the manner provided in part 528 of this chapter) the authorized officer upon his/her own motion may amend the provisions of a certificate when it is necessary by reason of the amendment of these regulations, or may withdraw a certificate and issue a replacement certificate when necessary to correct <PRTPAGE P="144"/>omissions or apparent defects in the original certificates.</P> </SECTION> <SECTION> <SECTNO>§ 519.19</SECTNO> <SUBJECT>Reconsideration and review.</SUBJECT> <P>(a) Within 15 days after being informed of a denial of an application for a full-time student certificate or within 45 days after <E T="04">Federal Register</E> publication of a statement of the terms of the certificate granted, (subsequent to April 30, 1976, within 60 days after a certificate is granted), any person aggrieved by the action of an authorized officer in denying or granting a certificate may:</P> <P>(1) File a written request for reconsideration thereof by the authorized officer who made the decision in the first instance, or</P> <P>(2) File with the Administrator a written request for review.</P> <P>(b) A request for reconsideration shall be accompanied by a statement of the additional evidence which the applicant believes may materially affect the decision and a showing that there were reasonable grounds for failure to present such evidence in the original proceedings.</P> <P>(c) Any person aggrieved by the reconsideration of an authorized officer may, within 15 days after such determination, file with the Administrator a written request for review.</P> <P>(d) A request for review shall be granted where reasonable grounds for the review are set forth in the request.</P> <P>(e) If a request for reconsideration or review is granted, the authorized officer or the Administrator may, to the extent he/she deems it appropriate, afford other interested persons an opportunity to present data, views, or argument.</P> <CITA>[40 FR 6329, Feb. 11, 1975; 40 FR 22546, May 23, 1975]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 520</EAR> <HD SOURCE="HED">PART 520—EMPLOYMENT UNDER SPECIAL CERTIFICATE OF MESSENGERS, LEARNERS (INCLUDING STUDENT-LEARNERS), AND APPRENTICES</HD> <CONTENTS> <SUBPART> <RESERVED>Subpart A [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—What Are the General Provisions Governing the Employment of Messengers, Learners (Including Student-Learners), and Apprentices at Subminimum Wages?</HD> <SECHD>Sec.</SECHD> <SECTNO>520.200</SECTNO> <SUBJECT>What is the legal authority for payment of wages lower than the minimum wage required by section 6(a) of the Fair Labor Standards Act?</SUBJECT> <SECTNO>520.201</SECTNO> <SUBJECT>How are those classifications of workers which may be paid subminimum wages under section 14(a) of the Fair Labor Standards Act defined?</SUBJECT> <SECTNO>520.202</SECTNO> <SUBJECT>How do persons who want to apply for a particular certificate find out what is needed?</SUBJECT> <SECTNO>520.203</SECTNO> <SUBJECT>What records does an employer have to keep when subminimum wage certificates are granted? How long do they have to be kept?</SUBJECT> <SECTNO>520.204</SECTNO> <SUBJECT>If someone does not agree with the Department of Labor's decision on a certificate, can the decision be appealed?</SUBJECT> <SECTNO>520.205</SECTNO> <SUBJECT>How do these rules affect other Federal, state and local laws and collective bargaining agreements?</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Definitions</HD> <SECTNO>520.300</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Messengers, Learners (Excluding Student-Learners), and Apprentices</HD> <SECTNO>520.400</SECTNO> <SUBJECT>Who are messengers, learners, and apprentices?</SUBJECT> <SECTNO>520.401</SECTNO> <SUBJECT>Are there any industries, occupations, etc. that do not qualify for a certificate to employ messengers, learners, or apprentices at subminimum wages?</SUBJECT> <SECTNO>520.402</SECTNO> <SUBJECT>How do I obtain authority to employ messengers, learners, or apprentices at subminimum wages?</SUBJECT> <SECTNO>520.403</SECTNO> <SUBJECT>What information is required when applying for authority to pay less than the minimum wage?</SUBJECT> <SECTNO>520.404</SECTNO> <SUBJECT>What must I demonstrate in my application for a messenger, learner, or apprentice certificate to receive a favorable review?</SUBJECT> <SECTNO>520.405</SECTNO> <SUBJECT>Must I notify my employees that I am applying for a certificate to employ messengers and/or learners at subminimum wages?<PRTPAGE P="145"/> </SUBJECT> <SECTNO>520.406</SECTNO> <SUBJECT>What happens once I have submitted my request for authorization to pay messengers, learners, or apprentices subminimum wages?</SUBJECT> <SECTNO>520.407</SECTNO> <SUBJECT>What is the subminimum wage for messengers and what must I do to comply with the terms of my certificate?</SUBJECT> <SECTNO>520.408</SECTNO> <SUBJECT>What is the subminimum wage for learners and what must I do to comply with the terms of my certificate?</SUBJECT> <SECTNO>520.409</SECTNO> <SUBJECT>When will authority to pay apprentices special minimum wages become effective and what is the special minimum wage rate?</SUBJECT> <SECTNO>520.410</SECTNO> <SUBJECT>How long does a messenger, learner, or apprentice certificate remain in effect?</SUBJECT> <SECTNO>520.411</SECTNO> <SUBJECT>Does a certificate authorizing payment of subminimum wages to messengers and/or learners remain in effect during the renewal process?</SUBJECT> <SECTNO>520.412</SECTNO> <SUBJECT>What records, in addition to those required by Part 516 of this chapter and section 520.203 of this part, must I keep relating to the employment of messengers, learners, or apprentices under special certificate?</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Student-Learners</HD> <SECTNO>520.500</SECTNO> <SUBJECT>Who is a student-learner?</SUBJECT> <SECTNO>520.501</SECTNO> <SUBJECT>How do I obtain authority to employ student-learners at subminimum wages?</SUBJECT> <SECTNO>520.502</SECTNO> <SUBJECT>What information must an application to employ student-learners at subminimum wages contain?</SUBJECT> <SECTNO>520.503</SECTNO> <SUBJECT>What must I demonstrate in my application for a student-learner certificate to receive a favorable review?</SUBJECT> <SECTNO>520.504</SECTNO> <SUBJECT>When will authority to pay student-learners subminimum wages become effective?</SUBJECT> <SECTNO>520.505</SECTNO> <SUBJECT>How will I be notified that my request to employ student-learners at subminimum wages has been denied and can I appeal the denial?</SUBJECT> <SECTNO>520.506</SECTNO> <SUBJECT>What is the subminimum wage for student-learners and what must I do to comply with the terms of my student-learner certificate?</SUBJECT> <SECTNO>520.507</SECTNO> <SUBJECT>How long does my certificate remain in effect?</SUBJECT> <SECTNO>520.508</SECTNO> <SUBJECT>What records, in addition to those required by Part 516 of this chapter and section 520.203 of this part, must I keep when student-learners are employed?</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 14, 52 Stat. 1062, 1064 (29 U.S.C. 214); secs. 2-12, 60 Stat. 237-244; (5 U.S.C. 1001-1011); 52 Stat. 1068, as amended, 29 U.S.C. 214.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 64959, Dec. 9, 1997, unless otherwise noted.</P> </SOURCE> <SUBPART> <RESERVED>Subpart A [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—What are the General Provisions Governing the Employment of Messengers, Learners (Including Student-Learners), and Apprentices at Subminimum Wages?</HD> <SECTION> <SECTNO>§ 520.200</SECTNO> <SUBJECT>What is the legal authority for payment of wages lower than the minimum wage required by section 6(a) of the Fair Labor Standards Act?</SUBJECT> <P>Section 14(a) of the Fair Labor Standards Act provides, in order to prevent curtailment of employment opportunities, for the payment of special minimum wage rates to workers employed as messengers, learners (including student-learners), and apprentices under special certificates issued by the Department of Labor.</P> </SECTION> <SECTION> <SECTNO>§ 520.201</SECTNO> <SUBJECT>How are those classifications of workers which may be paid subminimum wages under section 14(a) of the Fair Labor Standards Act defined?</SUBJECT> <P>(a) A messenger is a worker who is primarily engaged in delivering letters and messages for a firm whose principal business is the delivery of such letters and messages.</P> <P>(b) A learner is a worker who is being trained for an occupation, which is not customarily recognized as an apprenticeable trade, for which skill, dexterity and judgment must be learned and who, when initially employed, produces little or nothing of value. Except in extraordinary circumstances, an employee cannot be considered a “learner” once he/she has acquired a total of 240 hours of job-related and/or vocational training with the same or other employer(s) or training facility(ies) during the past three years. An individual qualifying as a “learner” may only be trained in two qualifying occupations.</P> <P>(c) A student-learner is a student who is at least sixteen years of age, or at least eighteen years of age if employed in an occupation which the Secretary has declared to be particularly hazardous, who is receiving instruction in an accredited school, college or university and who is employed on a part-<PRTPAGE P="146"/>time basis, pursuant to a “bona fide vocational training program” as defined in subpart C of this part.</P> <P>(d) An apprentice is a worker, at least sixteen years of age unless a higher minimum age standard is otherwise fixed by law, who is employed to learn a skilled trade through a registered apprenticeship program. Training is provided through structured on-the-job training combined with supplemental related theoretical and technical instruction. This term excludes pre-apprentices, trainees, learners, and student-learners. The terms learner and student-learner are defined in subpart C of this part. Standards governing the registration of apprenticeship programs are established and administered by the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training (BAT) and are found in Regulations, 29 CFR Part 29.</P> <P>(e) Additional terms used in this part are defined in subpart C of this part.</P> </SECTION> <SECTION> <SECTNO>§ 520.202</SECTNO> <SUBJECT>How do persons who want to apply for a particular certificate find out what is needed?</SUBJECT> <P>The application process, terms, conditions and requirements of certificates and other matters are discussed in subparts D and E of this part. Messengers, learners (excluding student-learners), and apprentices are discussed in subpart D of this part and student-learners in subpart E of this part.</P> </SECTION> <SECTION> <SECTNO>§ 520.203</SECTNO> <SUBJECT>What records does an employer have to keep when subminimum wage certificates are granted? How long do they have to be kept?</SUBJECT> <P>(a) In addition to other records required under the recordkeeping requirements (part 516 of this chapter), the employer is required to keep records specific to certification under section 14(a) of the Fair Labor Standards Act. All workers employed under a subminimum wage certificate shall be designated as such on the employer's payroll records. Further recordkeeping requirements are described in each applicable subpart of this part (see §§ 520.412 and 520.508 of this part).</P> <P>(b) Employers must maintain and preserve all required records for at least three years from the last date of employment under a subminimum wage program. The employer's copy of the application and the certificate shall also be maintained for three years. Such records shall be kept secure and accessible at the place of employment or where payroll records are customarily maintained. All records must be available for inspection and copying by the Administrator.</P> </SECTION> <SECTION> <SECTNO>§ 520.204</SECTNO> <SUBJECT>If someone does not agree with the Department of Labor's decision on a certificate, can the decision be appealed?</SUBJECT> <P>(a) Any person, applicant, trade union, association, etc. who does not agree with action granting or denying a certificate (pursuant to §§ 520.406 and 520.505) may, within 60 days of that action or such additional time as the Administrator may allow, file with the Administrator a petition for review. The decision of the Administrator becomes final unless such a written request is timely filed.</P> <P>(b) Such requests should contain a statement of the additional evidence which the person believes may materially affect the decision and establish that there were reasonable grounds for failure to present such evidence during the original certification process.</P> <P>(c) If a request for reconsideration or review is granted, the Administrator, to the extent it is deemed appropriate, may afford other interested persons an opportunity to present data and views.</P> <P>(d) The Administrator may conduct an investigation, which may include a hearing, prior to taking any action pursuant to this part.</P> </SECTION> <SECTION> <SECTNO>§ 520.205</SECTNO> <SUBJECT>How do these rules affect other Federal, state and local laws and collective bargaining agreements?</SUBJECT> <P>No provision of this part, or of any special minimum wage certificate issued thereunder, shall excuse noncompliance with any other Federal or state law or municipal ordinance or collective bargaining agreement establishing higher standards.</P> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="147"/> <HD SOURCE="HED">Subpart C—Definitions</HD> <SECTION> <SECTNO>§ 520.300</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P> <E T="03">Administrator</E> means the Administrator of the Wage and Hour Division, Employment Standards Administration, United States Department of Labor, or his/her authorized representative.</P> <P> <E T="03">Apparel industry</E> means the manufacturing of the following products as referred to in subpart D of this part:</P> <P>(1) Rainwear means the manufacture of waterproofed garments and raincoats from oiled cloth or other materials, whether vulcanized, rubberized, cravenetted, or otherwise processed.</P> <P>(2) Leather and sheep-lined clothing means the manufacture of leather, leather-trimmed and sheeplined garments for men, women or children.</P> <P>(3) Women's apparel division of the apparel industry for the manufacture of women's, misses', and juniors' dresses means the production of women's, misses' and juniors' dresses; washable service garments; blouses from woven or purchased knit fabric; women's, misses', children's and infants' underwear, nightwear and negligees from woven fabrics; corsets and other body supporting garments from any material; infants' and children's outerwear; and other garments similar to them.</P> <P>(4) Robes, means the manufacture of robes from any woven material or from purchased knitted materials, including, without limitation, men's, women's and children's bath, lounging and beach robes and dressing gowns.</P> <P> <E T="03">Apprentice</E> means a worker, at least sixteen years of age unless a higher minimum age standard is otherwise fixed by law, who is employed to learn a skilled trade through a registered apprenticeship program. Training is provided through structured on-the-job training combined with supplemental related theoretical and technical instruction. This term excludes pre-apprentices, trainees, learners, and student-learners. The terms learner and student-learner are defined in this subpart.</P> <P> <E T="03">Apprenticeship agreement</E> means a written agreement between an apprentice and either his/her employer, or an apprenticeship committee acting as agent for employer(s), which contains the terms and conditions of the employment and training of the apprentice.</P> <P> <E T="03">Apprenticeship committee</E> means those persons designated by the sponsor to act for it in the administration of the program. A committee may be “joint”, i.e., it is composed of an equal number of representatives of the employer(s) and of the employees represented by a bona fide collective bargaining agent(s) and has been established to conduct, operate, or administer an apprenticeship program and enter into apprenticeship agreements with apprentices. A committee may be “unilateral” or “non-joint” and shall mean a program sponsor in which a bona fide collective bargaining agent is not a participant.</P> <P> <E T="03">Apprenticeship program</E> means a plan containing all terms and conditions for the qualification, recruitment, selection, employment and training of apprentices, including such matters as the requirements for a written apprenticeship agreement.</P> <P> <E T="03">BAT</E> means the Bureau of Apprenticeship and Training, Employment and Training Administration, United States Department of Labor.</P> <P> <E T="03">Bona fide vocational training program</E> means a program authorized and approved by a state board of vocational education or other recognized educational body that provides for part-time employment training which may be scheduled for a part of the work day or workweek, for alternating weeks or for other limited periods during the year, supplemented by and integrated with a definitely organized plan of instruction designed to teach technical knowledge and related industrial information given as a regular part of the student-learner's course by an accredited school, college, or university.</P> <P> <E T="03">Department</E> means the United States Department of Labor.</P> <P> <E T="03">Experienced worker</E> means a worker whose total experience in an authorized learner occupation in the industry, including vocational training, within the past three years is equal to or greater than 240 hours or such other period as authorized by a learner certificate issued pursuant to the regulations in this part.<PRTPAGE P="148"/> </P> <P> <E T="03">Experienced worker available for employment</E> means an experienced worker residing within the area from which the plant/business customarily draws its labor supply or within a reasonable commuting distance of such area, and who is willing and able to accept employment in the plant/business; or an experienced worker residing outside of the area from which the plant/business customarily draws its labor supply, who has in fact made himself or herself available for employment at the plant/business.</P> <P> <E T="03">FLSA</E> means the Fair Labor Standards Act of 1938 as amended (29 U.S.C. 201 <E T="03">et seq.</E>).</P> <P> <E T="03">Learner</E> means a worker who is being trained for an occupation, which is not customarily recognized as an apprenticeable trade, for which skill, dexterity and judgment must be learned and who, when initially employed produces little or nothing of value. Except in extraordinary circumstances, an employee cannot be considered a “learner” once he/she has acquired a total of 240 hours of job-related and/or vocational training with the same or other employer(s) or training facility(ies) during the past three years. An individual qualifying as a “learner” may only be trained in two qualifying occupations.</P> <P> <E T="03">Learning period</E> means a period of time measured in work hours and vocational training hours that is normally required to fully train an inexperienced worker in a particular occupation within an industry where the learner is employed. The learning period will not exceed 240 hours for any qualifying occupation except in extraordinary circumstances where the employer demonstrates that the occupation to be learned requires an extended period of specialized training.</P> <P> <E T="03">Men's and boys' clothing industry</E> means the industry which manufactures men's, youths', and boys' suits, coats, and overcoats.</P> <P> <E T="03">Messenger</E> means a worker who is primarily engaged in delivering letters and messages for a firm whose principal business is the delivery of such letters and messages.</P> <P> <E T="03">Minimum wage</E> means the wage rate required by section 6 of FLSA. For purposes of this part, subminimum wage rates are based exclusively on the applicable minimum wage provided by section 6(a) of FLSA.</P> <P> <E T="03">Recognized apprenticeship agency</E> means either a state apprenticeship agency recognized by the BAT, or if no such apprenticeship agency exists in the state, the BAT.</P> <P> <E T="03">Registered apprenticeship program or agreement</E> means a program or agreement which has been approved by a recognized apprenticeship agency as meeting the basic standards of apprenticeship adopted and published by BAT.</P> <P> <E T="03">Secretary or Secretary of Labor</E> means the Secretary of Labor, United States Department of Labor or his/her authorized representative.</P> <P> <E T="03">Shoe manufacturing industry</E> means the manufacture or partial manufacture of footwear from any material and by any process except knitting, vulcanizing of the entire article or vulcanizing (as distinct from cementing) of the sole to the upper, including the manufacturing of the following: athletic shoes; boots; boot tops; burial shoes; custom-made boots or shoes; moccasins; puttees, except spiral puttees; sandals; shoes completely rebuilt in a shoe factory; slippers. This term also includes the manufacture from leather or from any shoe-upper material of all cut stock and findings for footwear, including bows, ornaments, and trimmings. It also includes the manufacture of cutsoles; midsoles; insoles; taps; lifts; rands; toplifts; bases; shanks; boxtoes; counters; stays; stripping; sock linings; and heel pads. Shoe manufacturing also includes the manufacture of heels from any material except molded rubber, but not including the manufacture of woodheel blocks; the manufacture of cut upper parts for footwear, including linings, vamps and quarters; and the manufacture of pasted shoe stock; as well as the manufacture of boot and shoe patterns. However, the manufacture of cut stock and findings is included within this definition only when performed by companies engaged in the production of shoes who incorporate most of the cut stock and findings in the manufacture of their product(s).</P> <P> <E T="03">Skilled trade</E> means an apprenticeable occupation which possesses all of the following characteristics:<PRTPAGE P="149"/> </P> <P>(1) It is customarily learned in a practical way through a structured, systematic program of on-the-job supervised training.</P> <P>(2) It is clearly identified and commonly recognized throughout an industry.</P> <P>(3) It involves manual, mechanical or technical skills and knowledge which require a minimum of 2,000 hours of on-the-job work experience.</P> <P>(4) It requires related instruction to supplement the on-the-job training.</P> <P>(5) It is not merely a part of an apprenticeable occupation and does not fall into any of the following categories: marketing; sales administration; administrative support; executive and managerial; professional and semi-professional occupations (this category covers occupations for which entrance requirements customarily include education of college level).</P> <P> <E T="03">Standards of apprenticeship</E> means the apprenticeship program is an organized, written plan embodying the terms and conditions of employment, training, and supervision of one or more apprentices in the apprenticeable occupation, which meets the requirements established by BAT, and is subscribed to by a sponsor who has undertaken to carry out the apprentice training program.</P> <P> <E T="03">State</E> means any state of the United States or the District of Columbia or any territory or possession of the United States.</P> <P> <E T="03">Student-learner</E> means a student who is at least sixteen years of age, or at least eighteen years of age if employed in an occupation which the Secretary has declared to be particularly hazardous, who is receiving instruction in an accredited school, college or university and who is employed by an establishment on a part-time basis, pursuant to a bona fide vocational training program.</P> <P> <E T="03">Subminimum wage</E> means the rates which may be paid under temporary authorization or under certificate as provided by section 14(a) of FLSA and this part.</P> <P> <E T="03">Vocational Training Program.</E> See “Bona fide vocational training program”.</P> <P> <E T="03">Wage and Hour Division</E> means the Wage and Hour Division, Employment Standards Administration, United States Department of Labor.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Messengers, Learners (Excluding Student-Learners), and Apprentices</HD> <SECTION> <SECTNO>§ 520.400</SECTNO> <SUBJECT>Who are messengers, learners, and apprentices?</SUBJECT> <P>The terms messenger, learner, and apprentice are defined in subpart C of this part.</P> </SECTION> <SECTION> <SECTNO>§ 520.401</SECTNO> <SUBJECT>Are there any industries, occupations, etc. that do not qualify for a certificate to employ messengers, learners, or apprentices at subminimum wages?</SUBJECT> <P>(a) Certificates to employ messengers at subminimum wages are available to only those establishments engaged in the business of providing messenger service, i.e., the delivery of letters and messages. Requests for such certificates are uniformly denied to applicants whose principal business purpose is not the delivery of messages and letters.</P> <P>(b) All applications for special certificates authorizing the employment of learners at subminimum wage rates in the manufacture of products in the following industries shall be denied (definitions for all listed activities can be found in subpart C of this part):</P> <P>(1) In the apparel industry:</P> <P>(i) Rainwear</P> <P>(ii) Leather and sheep-lined clothing</P> <P>(iii) Women's apparel division of the apparel industry for the manufacture of women's misses', and juniors' dresses;</P> <P>(iv) Robes</P> <P>(2) Shoe manufacturing industry</P> <P>(3) Men's and boys' clothing industry.</P> <P>(c) No certificates will be granted authorizing the employment of learners at subminimum wage rates as homeworkers; in maintenance occupations such as guard, porter, or custodian; in office and clerical occupations in any industry; or in operations of a temporary or sporadic nature.</P> <P>(d) Authorization to employ apprentices at subminimum wages will only be granted if permitted by the BAT regulations (29 CFR Part 29).</P> </SECTION> <SECTION> <PRTPAGE P="150"/> <SECTNO>§ 520.402</SECTNO> <SUBJECT>How do I obtain authority to employ messengers, learners, or apprentices at subminimum wages?</SUBJECT> <P>(a) Employers wishing to employ messengers, learners, or apprentices as defined in subpart C of this part at subminimum wages must apply for authority to do so from the Administrator at the Wage and Hour Division's Regional Office having administrative jurisdiction over the geographic area in which the employment is to take place. To obtain the address of the Regional Office which services your geographic area, please contact your local Wage and Hour Office (under “Department of Labor” in the blue pages of your local telephone book).</P> <P>(b) In the case of messengers, such application may be filed by an employer or group of employers. Preferential consideration will be given to applications filed by groups or organizations which are deemed to be representative of the interests of a whole industry or branch thereof.</P> </SECTION> <SECTION> <SECTNO>§ 520.403</SECTNO> <SUBJECT>What information is required when applying for authority to pay less than the minimum wage?</SUBJECT> <P>(a) A separate application must be made for each plant or establishment requesting authorization for employment of messengers and/or learners at subminimum wages, on the official form furnished by the Wage and Hour Division, containing all information required by the form including:</P> <P>(1) Information concerning efforts made by the applicant to obtain experienced workers in occupation(s) for which learners are requested;</P> <P>(2) The occupations/industry in which the messenger(s) and/or learner(s) are to be employed;</P> <P>(3) A statement explaining why employment of messenger(s) and/or learners(s) at subminimum wages is needed to prevent curtailment of employment opportunities;</P> <P>(4) The number of messengers and/or learners the applicant anticipates employing at subminimum wages under special certificate;</P> <P>(5) If requesting authorization for the employment of learners at subminimum wages for a learning period greater than 240 hours, information pertinent to the extraordinary circumstances necessitating such a request. While each such request will be considered on its own merit, it is anticipated that such authorizations would be limited to occupations requiring an extended period of specialized training;</P> <P>(6) The number of messengers and/or learners hired at subminimum wages during the twelve-month period prior to making application;</P> <P>(7) Total number of nonsupervisory workers in the particular plant or establishment for which a certificate is requested;</P> <P>(8) The number of experienced workers in the learner occupations and their straight-time average hourly earnings during the last payroll period and the corresponding payroll period in the prior year; and</P> <P>(9) The type of equipment to be used by learners.</P> <P>(b) For apprentices, the employer or apprenticeship committee must submit a copy of the registered apprenticeship program.</P> <P>(c) Any applicant may also submit such additional information as may be pertinent. Applications which fail to provide the information required by the form may be returned to the applicant with a notation of deficiencies and without prejudice against submission of a new or revised application.</P> <APPRO>(The information collection requirements contained in paragraphs (a), (b) and (c) were approved by the Office of Management and Budget under control number 1215-0192.)</APPRO> </SECTION> <SECTION> <SECTNO>§ 520.404</SECTNO> <SUBJECT>What must I demonstrate in my application for a messenger, learner, or apprentice certificate to receive a favorable review?</SUBJECT> <P>(a) The application must demonstrate that a certificate is necessary in order to prevent the curtailment of opportunities for employment.</P> <P>(b) The issuance of a messenger and/or learner certificate must not tend to create unfair competitive labor cost advantages nor have the effect of impairing or depressing wage rates or working standards of experienced workers performing work of a like or comparable character in the industry.</P> <P>(c) Abnormal labor conditions such as a strike, lock-out, or other similar condition, must not exist at the plant <PRTPAGE P="151"/>or establishment for which a messenger and/or learner certificate is requested.</P> <P>(d) It must be shown that an adequate supply of qualified experienced workers is not available for employment in those occupations for which authorization to pay subminimum wages to learners has been requested; that the experienced workers presently employed in the plant or establishment in occupations in which learners are requested are afforded an opportunity, to the fullest extent possible, for full-time employment upon completion of the learning period; and that learners are available for employment.</P> <P>(e) Reasonable efforts must have been made to recruit workers paid at least the minimum wage in those occupations in which certificates to employ learners at subminimum wages have been requested. This includes the placement of an order with the local State or Territorial Public Employment Service Office (except in possessions where there is no such office) not more than fifteen days prior to the date of application. Written evidence from such office that the order has been placed shall be submitted by the employer with the application.</P> <P>(f) The occupation or occupations in which learners are to receive training must involve a sufficient degree of skill to necessitate an appreciable learning period.</P> <P>(g) An apprenticeship program must conform with or substantially conform with the standards of apprenticeship as defined in subpart C of this part.</P> <P>(h) There must be no serious outstanding violations involving the employee(s) for whom a certificate is being requested nor any serious outstanding violations of a certificate previously issued, nor any serious violations of the FLSA which provide reasonable grounds to conclude that the terms of a certificate may not be complied with, if issued.</P> </SECTION> <SECTION> <SECTNO>§ 520.405</SECTNO> <SUBJECT>Must I notify my employees that I am applying for a certificate to employ messengers and/or learners at subminimum wages?</SUBJECT> <P>Upon making application for a messenger and/or learner certificate or for renewal thereof, an employer shall post a copy of the first page of the completed application form in a conspicuous place in each department of the plant or establishment where he/she proposes to employ messengers and/or learners at subminimum wage rates. Such notice shall remain posted until the application is acted upon by the Administrator.</P> <APPRO>(The information collection requirements contained in paragraphs (a), (b) and (c) were approved by the Office of Management and Budget under control number 1215-0192.)</APPRO> </SECTION> <SECTION> <SECTNO>§ 520.406</SECTNO> <SUBJECT>What happens once I have submitted my request for authorization to pay messengers, learners, or apprentices subminimum wages?</SUBJECT> <P>(a) All applications submitted for authorization to pay wages lower than those required by section 6(a) of the FLSA will be considered and acted upon (issued or denied) subject to the conditions specified in §§ 520.403 and 520.404 of this part.</P> <P>(b) If, in the case of messengers and/or learners, available information indicates that the requirements of this part are satisfied, the Administrator shall issue a special certificate which will be mailed to the employer. If a special certificate is denied, the employer shall be given written notice of the denial. If a messenger and/or learner certificate is denied, notice of such denial shall be without prejudice to the filing of any subsequent application.</P> <P>(c) If, in the case of apprentices, the apprenticeship agreement and other available information indicate that the requirements of this part are satisfied, the Administrator shall issue a special certificate. The special certificate, if issued, shall be mailed to the employer or the apprenticeship committee and a copy shall be mailed to the apprentice. If a special certificate is denied, the employer or the apprenticeship committee, the apprentice and the recognized apprenticeship agency shall be given written notice of the denial. The employer shall pay the apprentice the minimum wage applicable under section 6(a) of the FLSA from the date of receipt of notice of such denial.</P> </SECTION> <SECTION> <PRTPAGE P="152"/> <SECTNO>§ 520.407</SECTNO> <SUBJECT>What is the subminimum wage for messengers and what must I do to comply with the terms of my certificate?</SUBJECT> <P>(a) A messenger certificate, if issued, shall specify:</P> <P>(1) The subminimum wage rate of not less than 95 percent of the applicable minimum wage required by section 6(a) of the FLSA; and</P> <P>(2) The effective and expiration dates of the certificate.</P> <P>(b) The employer shall post a copy of the messenger certificate during its effective period in a conspicuous place where it can be readily seen by employees.</P> <P>(c) No messenger shall be hired under a messenger certificate while abnormal labor conditions such as a strike, lock-out, or other similar condition, exist.</P> </SECTION> <SECTION> <SECTNO>§ 520.408</SECTNO> <SUBJECT>What is the subminimum wage for learners and what must I do to comply with the terms of my certificate?</SUBJECT> <P>(a) All learner certificates shall specify:</P> <P>(1) The subminimum wage rate of not less than 95 percent of the applicable minimum wage required by section 6(a) of the FLSA;</P> <P>(2) The number or proportion of learners authorized to be employed on any one day;</P> <P>(3) The occupations in which learners may be employed;</P> <P>(4) The authorized learning period of not more than 240 hours, except in extraordinary situations as discussed in § 520.403; and</P> <P>(5) The effective and expiration dates of the certificate.</P> <P>(b) Learners properly hired prior to the date on which a learner certificate expires may be continued in employment at subminimum wage rates for the duration of their authorized learning period under the terms of the certificate, even though the certificate may expire before the learning period is completed.</P> <P>(c) The employer shall post a copy of the learner certificate during its effective period and thereafter until all authorized learners have completed their learning period(s). The certificate shall be posted in a conspicuous place in each department of the plant where learners are to be employed.</P> <P>(d) No learners shall be hired under a learner certificate if, at the time the employment begins, experienced workers capable of equaling the performance of a worker of minimum acceptable skill are available for employment. Before hiring learners during the effective period of the certificate, the employer shall place an order for experienced workers with the local State or Territorial Public Employment Service Office (except in possessions where there is no such office) or have such an active order on file. Written evidence that an order has been placed or is on active file shall be maintained in the employer's records.</P> <P>(e) No learner shall be hired under a learner certificate while abnormal labor conditions such as a strike, lock-out, or other similar condition exist in the plant or establishment.</P> <P>(f) For each individual learner, the number of hours of previous employment and hours of vocational or similar facility(ies) training must be deducted from the authorized learning period if within the past three years the learner has been employed or received vocational training in a given occupation and industry.</P> <P>(g) If experienced workers are paid on a piece rate basis, learners shall be paid at least the same piece rates as experienced workers employed on similar work in the plant and shall receive earnings based on such piece rates whenever such earnings exceed the subminimum wage rates permitted in the certificate.</P> </SECTION> <SECTION> <SECTNO>§ 520.409</SECTNO> <SUBJECT>When will authority to pay apprentices special minimum wages become effective and what is the special minimum wage rate?</SUBJECT> <P>(a) An apprenticeship program which has been registered with a recognized apprenticeship agency shall constitute a temporary special certificate authorizing the employment of an apprentice at the wages and under the conditions specified in such program until a special certificate is issued or denied. This temporary authorization is, however, conditioned on the requirement that within 90 days from the beginning date of employment of the apprentice, the <PRTPAGE P="153"/>employer or the apprenticeship committee shall send one copy of each apprenticeship agreement, with evidence of registration, to the appropriate Regional Office of the Wage and Hour Division.</P> <P>(b) The wage rate specified by the apprenticeship program becomes the special minimum wage rate that must be paid unless the Administrator issues a certificate modifying the terms and conditions of employment of apprentices at special minimum wages.</P> </SECTION> <SECTION> <SECTNO>§ 520.410</SECTNO> <SUBJECT>How long does a messenger, learner, or apprentice certificate remain in effect?</SUBJECT> <P>(a) Messenger and/or learner certificates may be issued for a period of not longer than one year.</P> <P>(b) Each special apprentice certificate shall specify the conditions and limitations under which it is granted, including the periods of time during which subminimum wage rates may be paid pursuant to a registered apprenticeship program.</P> <P>(c) No certificate may be issued retroactively.</P> <P>(d) The Administrator may amend the provisions of a certificate when necessary to correct omissions or defects in the original certificate or reflect changes in this part.</P> </SECTION> <SECTION> <SECTNO>§ 520.411</SECTNO> <SUBJECT>Does a certificate authorizing payment of subminimum wages to messengers and/or learners remain in effect during the renewal process?</SUBJECT> <P>(a) Application for renewal of a messenger and/or learner certificate shall be made on the same form as described in this section and employees shall be advised of such renewal application in the same manner as explained in § 520.405. No effective messenger and/or learner certificate shall expire until action on an application for renewal shall have been finally determined, provided that such application has been properly executed in accordance with the requirements, and filed with and received by the Administrator not less than fifteen nor more than thirty days prior to the expiration date. A final determination means either the granting of or initial denial of the application for renewal of a messenger and/or learner certificate, or withdrawal of the application. A “properly executed application” is one which contains the complete information required on the form, and the required certification by the applicant.</P> <P>(b) A renewal certificate will not be issued unless there is a clear showing that the conditions set forth in section 520.404 of this part still prevail.</P> </SECTION> <SECTION> <SECTNO>§ 520.412</SECTNO> <SUBJECT>What records, in addition to those required by Part 516 of this chapter and section 520.203 of this part, must I keep relating to the employment of messengers, learners, or apprentices under special certificate?</SUBJECT> <P>(a) Each worker employed as a messenger, learner, or apprentice under a certificate shall be designated as such on the employer's payroll records. All such messengers, learners, or apprentices shall be listed together as a separate group on the payroll records, with each messenger's, learner's, or apprentice's occupation being shown.</P> <P>(b) At the time learners are hired, the employer shall also obtain and keep in his/her records a statement signed by each employee showing all applicable experience which the learner had in the employer's industry, including vocational training, during the preceding three years. The statement shall contain the dates of such previous employment, names and addresses of employers, the occupation or occupations in which the learner was engaged and the types of products upon which the learner worked. The statement shall also contain information concerning pertinent training in vocational training schools or similar training facilities, including the dates of such training and the identity of the vocational school or training facility. If the learner has had no applicable experience or pertinent training, a statement to that effect signed by the learner shall likewise be kept in the employer's records.</P> <P>(c) The employer shall maintain a file of all evidence and records, including any correspondence, pertaining to the filing or cancellation of job orders placed with the local State or Territorial Public Employment Service Office pertaining to job orders for occupations to be performed by learners.<PRTPAGE P="154"/> </P> <P>(d) Every employer who employs apprentices under temporary or special certificates shall preserve for three years from the last effective date of the certificate copies of the apprenticeship program, apprenticeship agreement and special certificate under which such an apprentice is employed.</P> <P>(e) Every apprenticeship committee which holds a certificate under this part shall keep the following records for each apprentice under its control and supervision:</P> <P>(1) The apprenticeship program, apprenticeship agreement and special certificate under which the apprentice is employed by an employer;</P> <P>(2) The cumulative amount of work experience gained by the apprentice, in order to establish the proper wage at the time of his/her assignment to an employer; and</P> <P>(3) A list of the employers to whom the apprentice was assigned and the period of time he/she worked for each employer.</P> <P>(f) The records required in this section, including a copy of the application(s) submitted and any special certificate(s) issued, shall be kept and made available for inspection for at least three years from the expiration date of the certificate(s).</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Student-Learners</HD> <SECTION> <SECTNO>§ 520.500</SECTNO> <SUBJECT>Who is a student-learner?</SUBJECT> <P>The term student-learner is defined in subpart C.</P> </SECTION> <SECTION> <SECTNO>§ 520.501</SECTNO> <SUBJECT>How do I obtain authority to employ student-learners at subminimum wages?</SUBJECT> <P>(a) Employers wishing to employ student-learners at subminimum wages must apply for authority to do so from the Administrator at the Wage and Hour Division's Regional Office having administrative jurisdiction over the geographic area in which the employment is to take place. To obtain the address of the Regional Office which services your geographic area, please contact your local Wage and Hour Office (under “Department of Labor” in the blue pages of your local telephone book).</P> <P>(b) Application must be made on the official form furnished by the Wage and Hour Division and must be signed by the employer, the appropriate school official and the student-learner. A separate application must be filed by the employer for each student-learner the employer proposes to employ at subminimum wages.</P> <APPRO>(The information collection requirements contained in paragraph (b) were approved by the Office of Management and Budget under control number 1215-0192.)</APPRO> </SECTION> <SECTION> <SECTNO>§ 520.502</SECTNO> <SUBJECT>What information must an application to employ student-learners at subminimum wages contain?</SUBJECT> <P>Student-learner applications must contain:</P> <P>(a) A statement clearly outlining the vocational training program and showing, particularly, the processes in which the student-learner will be engaged when in training on the job;</P> <P>(b) A statement clearly outlining the school instruction directly related to the job;</P> <P>(c) The total number of workers employed in the establishment;</P> <P>(d) The number and hourly wage rates of experienced workers employed in the occupation in which the student-learner is to be trained;</P> <P>(e) The hourly wage rate or progressive wage schedule which the employer proposes to pay the student-learner;</P> <P>(f) The age of the student-learner;</P> <P>(g) The period of employment training at subminimum wages;</P> <P>(h) The number of hours of employment training a week and the number of hours of school instruction a week;</P> <P>(i) A certification by the appropriate school official that the student named on the application form will be receiving instruction in an accredited school, college, or university and will be employed pursuant to a bona fide vocational training program, as defined in subpart C of this part. The certification by the school official must satisfy the following conditions:</P> <P>(1) The application must be properly executed in conformance with § 520.501 of this subpart;</P> <P>(2) The employment training must conform with the provisions of § 520.503 (a), (c), (d), and (g) and paragraphs (a) and (c) of § 520.506;<PRTPAGE P="155"/> </P> <P>(3) The occupation must not be one for which a student-learner application was previously submitted by the employer and a special certificate was denied by the Administrator.</P> <APPRO>(The information collection requirements contained in paragraphs (a), (b), (c), (d), (e), (f), (g), (h) and (i) were approved by the Office of Management and Budget under control number 1215-0192.)</APPRO> </SECTION> <SECTION> <SECTNO>§ 520.503</SECTNO> <SUBJECT>What must I demonstrate in my application for a student-learner certificate to receive a favorable review?</SUBJECT> <P>Each student-learner application must demonstrate that:</P> <P>(a) The training program under which the student-learner will be employed is a bona fide vocational training program as defined in subpart C of this part;</P> <P>(b) The employment of the student-learner at subminimum wages authorized by the special certificate must be necessary to prevent curtailment of opportunities for employment;</P> <P>(c) The student-learner is at least sixteen years of age, or at least eighteen years of age if employed in any occupation which the Secretary has declared to be particularly hazardous (see part 570, subpart E, of this chapter, but note the specific exemptions for student-learners in several of the orders);</P> <P>(d) The occupation for which the student-learner is receiving preparatory training requires a sufficient degree of skill to necessitate a substantial learning period;</P> <P>(e) The training is not for the purpose of acquiring manual dexterity and high production speed in repetitive operations;</P> <P>(f) The employment of a student-learner will not have the effect of displacing a worker employed in the establishment;</P> <P>(g) The employment of the student-learners at subminimum wages must not tend to impair or depress the wage rates or working standards established for experienced workers for work of a like or comparable character;</P> <P>(h) The occupational needs of the community or industry warrant the training of student-learners;</P> <P>(i) There are no serious outstanding violations of the provisions of a student-learner certificate previously issued to the employer, or serious violations of any other provisions of the FLSA by the employer which provide reasonable grounds to conclude that the terms of the certificate would not be complied with, if issued;</P> <P>(j) The issuance of such a certificate would not tend to prevent the development of apprenticeship programs in accordance with the regulations applicable thereto (subpart D of this part) or would not impair established apprenticeship standards in the occupation or industry involved; and</P> <P>(k) The number of student-learners to be employed in one establishment is not more than a small proportion of its work force.</P> </SECTION> <SECTION> <SECTNO>§ 520.504</SECTNO> <SUBJECT>When will authority to pay student-learners subminimum wages become effective?</SUBJECT> <P>(a) Certification by the appropriate school official on an application for a special student-learner certificate shall constitute a temporary authorization. This temporary authorization is effective from the date such application is forwarded to the Wage and Hour Division in conformance with § 520.501.</P> <P>(b) At the end of 30 days, this application shall become the permanent special student-learner certificate unless, after review, the Administrator denies the application, issues a certificate with modified terms and conditions, or expressly extends the period of review.</P> </SECTION> <SECTION> <SECTNO>§ 520.505</SECTNO> <SUBJECT>How will I be notified that my request to employ student-learners at subminimum wages has been denied and can I appeal the denial?</SUBJECT> <P>(a) If, after review, an application is denied, notification of denial will be made to the appropriate school official, the employer and the student. This notification will occur within 30 days following the date such application was forwarded to the Wage and Hour Division, unless additional time for review is considered necessary or appropriate.</P> <P>(b) If additional time for review is considered necessary or appropriate, the proper school official, the employer, and the student shall be so notified. To the extent feasible, the Administrator may provide an opportunity to other interested persons to <PRTPAGE P="156"/>present data and views on the application before denying a special student-learner certificate.</P> <P>(c) Whenever a notification of denial is mailed to the employer, such denial shall be without prejudice to any subsequent application, except under the circumstances referred to in § 520.502(i)(3).</P> <P>(d) Section 520.204 of this part describes the procedures for requesting reconsideration of a decision to grant or deny a certificate.</P> </SECTION> <SECTION> <SECTNO>§ 520.506</SECTNO> <SUBJECT>What is the subminimum wage for student-learners and what must I do to comply with the terms of my student-learner certificate?</SUBJECT> <P>(a) The special minimum wage rate paid to student-learners shall be not less than 75 percent of the applicable minimum under section 6(a) of the FLSA.</P> <P>(b) Compliance with items listed for favorable review of a student-learner application (§ 540.503) must be demonstrated.</P> <P>(c)(1) The number of hours of employment training each week at subminimum wages pursuant to a certificate, when added to the hours of school instruction, shall not exceed 40 hours, except that authorization may be granted by the Administrator for a greater number of hours if found to be justified by extraordinary circumstances.</P> <P>(2) When school is not in session on any school day, the student-learner may work a number of hours in addition to the weekly hours of employment training authorized by the certificate; provided,</P> <P>(i) The total hours worked shall not exceed 8 hours on any such day, and</P> <P>(ii) A notation shall be made in the employer's records to the effect that school not being in session was the reason additional hours were worked on such day.</P> <P>(3) During the school term, when school is not in session for the entire week, the student-learner may work at his/her employment training a number of hours in the week in addition to those authorized by the certificate; provided,</P> <P>(i) The total hours shall not exceed 40 hours in any such week, and</P> <P>(ii) A notation shall be made in the employer's records to the effect that school not being in session was the reason additional hours were worked in such week.</P> <P>(d) A special student-learner certificate shall not constitute authorization to pay a subminimum wage rate to a student-learner in any week in which he/she is employed for a number of hours in addition to the number authorized in the certificate, except as provided in paragraphs (c)(1), (2), and (3) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 520.507</SECTNO> <SUBJECT>How long does my certificate remain in effect?</SUBJECT> <P>(a) A special student-learner certificate shall be effective for a period not to exceed the length of one school year unless a longer period is found to be justified by extraordinary circumstances. These circumstances must be explained in detail at the time of application. While each such request will be considered on its own merit, it is anticipated that such authorizations would be limited to occupations requiring an extended period of specialized training;</P> <P>(b) No certificate shall authorize employment training beyond the date of graduation.</P> <P>(c) No special student-learner certificate may be issued retroactively.</P> </SECTION> <SECTION> <SECTNO>§ 520.508</SECTNO> <SUBJECT>What records, in addition to those required by Part 516 of this chapter and section 520.203 of this part, must I keep when student-learners are employed?</SUBJECT> <P>Any worker employed as a student-learner shall be identified as such on the payroll records, with each student-learner's occupation and rate of pay being shown. Notations should be made in the employer's records when additional hours are worked by reason of school not being in session.</P> </SECTION> </SUBPART> </PART> <PART> <RESERVED>PARTS 521-523 [RESERVED]</RESERVED> </PART> <PART> <EAR>Pt. 525</EAR> <HD SOURCE="HED">PART 525—EMPLOYMENT OF WORKERS WITH DISABILITIES UNDER SPECIAL CERTIFICATES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>525.1</SECTNO> <SUBJECT>Introduction.</SUBJECT> <SECTNO>525.2</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>525.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>525.4</SECTNO> <SUBJECT>Patient workers.<PRTPAGE P="157"/> </SUBJECT> <SECTNO>525.5</SECTNO> <SUBJECT>Wage payments.</SUBJECT> <SECTNO>525.6</SECTNO> <SUBJECT>Compensable time.</SUBJECT> <SECTNO>525.7</SECTNO> <SUBJECT>Application for certificates.</SUBJECT> <SECTNO>525.8</SECTNO> <SUBJECT>Special provisions for temporary authority.</SUBJECT> <SECTNO>525.9</SECTNO> <SUBJECT>Criteria for employment of workers with disabilities under certificates at special minimum wage rates.</SUBJECT> <SECTNO>525.10</SECTNO> <SUBJECT>Prevailing wage rates.</SUBJECT> <SECTNO>525.11</SECTNO> <SUBJECT>Issuance of certificates.</SUBJECT> <SECTNO>525.12</SECTNO> <SUBJECT>Terms and conditions of special minimum wage certificates.</SUBJECT> <SECTNO>525.13</SECTNO> <SUBJECT>Renewal of special minimum wage certificates.</SUBJECT> <SECTNO>525.14</SECTNO> <SUBJECT>Posting of notices.</SUBJECT> <SECTNO>525.15</SECTNO> <SUBJECT>Industrial homework.</SUBJECT> <SECTNO>525.16</SECTNO> <SUBJECT>Records to be kept by employers.</SUBJECT> <SECTNO>525.17</SECTNO> <SUBJECT>Revocation of certificates.</SUBJECT> <SECTNO>525.18</SECTNO> <SUBJECT>Review.</SUBJECT> <SECTNO>525.19</SECTNO> <SUBJECT>Investigations and hearings.</SUBJECT> <SECTNO>525.20</SECTNO> <SUBJECT>Relation to other laws.</SUBJECT> <SECTNO>525.21</SECTNO> <SUBJECT>Lowering of wage rates.</SUBJECT> <SECTNO>525.22</SECTNO> <SUBJECT>Employee's right to petition.</SUBJECT> <SECTNO>525.23</SECTNO> <SUBJECT>Work activities centers.</SUBJECT> <SECTNO>525.24</SECTNO> <SUBJECT>Advisory Committee on Special Minimum Wages.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>52 Stat. 1060, as amended (29 U.S.C. 201-219); Pub. L. 99-486, 100 Stat. 1229 (29 U.S.C. 214).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>54 FR 32928, Aug. 10, 1989, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 525.1</SECTNO> <SUBJECT>Introduction.</SUBJECT> <P>The Fair Labor Standards Amendments of 1986 (Pub. L. 99-486, 100 Stat. 1229) substantially revised those provisions of the Fair Labor Standards Act of 1938 (29 U.S.C. 201) (FLSA) permitting the employment of individuals disabled for the work to be performed (workers with disabilities) at special minimum wage rates below the rate that would otherwise be required by statute. These provisions are codified at section 14(c) of the FLSA and:</P> <P>(a) Provide for the employment under certificates of individuals with disabilities at special minimum wage rates which are commensurate with those paid to workers not disabled for the work to be performed employed in the vicinity for essentially the same type, quality, and quantity of work;</P> <P>(b) Require employers to provide written assurances that wage rates of individuals paid on an hourly rate basis be reviewed at least once every six months and that the wages of all employees be reviewed at least annually to reflect changes in the prevailing wages paid to experienced individuals not disabled for the work to be performed employed in the locality for essentially the same type of work;</P> <P>(c) Prohibit employers from reducing the wage rates prescribed by certificate in effect on June 1, 1986, for two years;</P> <P>(d) Permit the continuance or establishment of work activities centers; and</P> <P>(e) Provide that any employee receiving a special minimum wage rate pursuant to section 14(c), or the parent or guardian of such an employee, may petition for a review of that wage rate by an administrative law judge.</P> </SECTION> <SECTION> <SECTNO>§ 525.2</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>The regulations in this part govern the issuance of all certificates authorizing the employment of workers with disabilities at special minimum wages pursuant to section 14(c) of FLSA.</P> </SECTION> <SECTION> <SECTNO>§ 525.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">FLSA</E> means the Fair Labor Standards Act of 1938, as amended.</P> <P>(b) <E T="03">Secretary</E> means the Secretary of Labor or the Secretary of Labor's authorized representative.</P> <P>(c) <E T="03">Administrator</E> means the Administrator of the Wage and Hour Division, U.S. Department of Labor, or the Administrator's authorized representative.</P> <P>(d) <E T="03">Worker with a disability</E> for the purpose of this part means an individual whose earning or productive capacity is impaired by a physical or mental disability, including those relating to age or injury, for the work to be performed. Disabilities which may affect earning or productive capacity include blindness, mental illness, mental retardation, cerebral palsy, alcoholism, and drug addiction. The following, taken by themselves, are not considered disabilities for the purposes of this part: Vocational, social, cultural, or educational disabilities; chronic unemployment; receipt of welfare benefits; nonattendance at school; juvenile delinquency; and, correctional parole or probation. Further, a disability which may affect earning or productive capacity for one type of work may not affect such capacity for another.<PRTPAGE P="158"/> </P> <P>(e) <E T="03">Patient worker</E> means a worker with a disability, as defined above, employed by a hospital or institution providing residential care where such worker receives treatment or care without regard to whether such worker is a resident of the establishment.</P> <P>(f) <E T="03">Hospital or institution,</E> hereafter referred to as <E T="03">institution,</E> is a public or private, nonprofit or for-profit facility primarily engaged in (<E T="03">i.e.,</E> more than 50 percent of the income is attributable to) providing residential care for the sick, the aged, or the mentally ill or retarded, including but not limited to nursing homes, intermediate care facilities, rest homes, convalescent homes, homes for the elderly and infirm, halfway houses, residential centers for drug addicts or alcoholics, and the like, whether licensed or not licensed.</P> <P>(g) <E T="03">Employ</E> is defined in FLSA as <E T="03">to suffer or permit to work.</E> An employment relationship arises whenever an individual, including an individual with a disability, is suffered or permitted to work. The determination of an employment relationship does not depend upon the level of performance or whether the work is of some therapeutic benefit. However, an individual does not become an employee if engaged in such activities as making craft products where the individual voluntarily participates in such activities and the products become the property of the individual making them, or all of the funds resulting from the sale of the products are divided among the participants in the activity or are used in purchasing additional materials to make craft products.</P> <P>(h) <E T="03">Special minimum wage</E> is a wage authorized under a certificate issued to an employer under this part that is less than the statutory minimum wage.</P> <P>(i) <E T="03">Commensurate</E> wage is a special minimum wage paid to a worker with a disability which is based on the worker's individual productivity in proportion to the wage and productivity of experienced nondisabled workers performing essentially the same type, quality, and quantity of work in the vicinity in which the individual under certificate is employed. For example, the commensurate wage of a worker with a disability who is 75% as productive as the average experienced nondisabled worker, taking into consideration the type, quality, and quantity of work of the disabled worker, would be set at 75% of the wage paid to the nondisabled worker. For purposes of these regulations, a commensurate wage is always a special minimum wage, <E T="03">i.e.,</E> a wage below the statutory minimum.</P> <P>(j) <E T="03">Vicinity</E> or <E T="03">locality</E> means the geographic area from which the labor force of the community is drawn.</P> <P>(k) <E T="03">Experienced worker</E> means a worker who has learned the basic elements or requirements of the work to be performed, ordinarily by completion of a probationary or training period. Typically, such a worker will have received at least one pay raise after successful completion of the probationary or training period.</P> </SECTION> <SECTION> <SECTNO>§ 525.4</SECTNO> <SUBJECT>Patient workers.</SUBJECT> <P>With respect to patient workers, as defined in § 525.3(e), a major factor in determining if an employment relationship exists is whether the work performed is of any consequential economic benefit to the institution. Generally, work shall be considered to be of consequential economic benefit if it is of the type that workers without disabilities normally perform, in whole or in part in the institution or elsewhere. However, a patient does not become an employee if he or she merely performs personal housekeeping chores, such as maintaining his or her own quarters, or receives a token remuneration in connection with such services. It may also be possible for patients in family-like settings such as group homes to rotate or share household tasks or chores without becoming employees.</P> </SECTION> <SECTION> <SECTNO>§ 525.5</SECTNO> <SUBJECT>Wage payments.</SUBJECT> <P>(a) An individual whose earning or productive capacity is not impaired for the work being performed cannot be employed under a certificate issued pursuant to this part and must be paid at least the applicable minimum wage. An individual whose earning or productive capacity is impaired to the extent that the individual is unable to earn at least the applicable minimum wage may be paid a commensurate wage, but only after the employer has obtained a <PRTPAGE P="159"/>certificate authorizing payment of special minimum wages from the appropriate office of the Wage and Hour Division of the Department of Labor.</P> <P>(b) With respect to patient workers employed in institutions, no deductions can be made from such individuals' commensurate wages to cover the cost of room, board, or other services provided by the facility. Such an individual must receive his or her wages free and clear, except for amounts deducted for taxes assessed against the employee and any voluntary wage assignments directed by the employee. (See part 531 of this title.) However, it is not the intention of these regulations to preclude the institution thereafter from assessing or collecting charges for room, board, and other services actually provided to an individual to the extent permitted by applicable Federal or State law and on the same basis as it assesses and collects from nonworking patients.</P> </SECTION> <SECTION> <SECTNO>§ 525.6</SECTNO> <SUBJECT>Compensable time.</SUBJECT> <P>Individuals employed subject to this part must be compensated for all hours worked. Compensable time includes not only those hours during which the individual is actually performing productive work but also includes those hours when no work is performed but the individual is required by the employer to remain available for the next assignment. However, where the individual is completely relieved from duty and is not required to remain available for the next assignment, such time will not be considered compensable time. For example, an individual employed by a rehabilitation facility would not be engaged in a compensable activity where such individual is completely relieved from duty but is provided therapy or the opportunity to participate in an alternative program or activity in the facility not involving work and not directly related to the worker's job (<E T="03">e.g.,</E> self-help skills training, recreation, job seeking skills training, independent living skills, or adult basic education). The burden of establishing that such hours are not compensable rests with the facility and such hours must be clearly distinguishable from compensable hours. (For further information on compensable time in general under FLSA, see part 785 of this title.)</P> </SECTION> <SECTION> <SECTNO>§ 525.7</SECTNO> <SUBJECT>Application for certificates.</SUBJECT> <P>(a) Application for a certificate may be filed by any employer with the Regional Office of the Wage and Hour Division having administrative jurisdiction over the geographic area in which the employment is to take place.</P> <P>(b) The employer shall provide answers to all of the applicable questions contained on the application form provided by the Regional Office.</P> <P>(c) The application shall be signed by the employer or the employer's authorized representative.</P> </SECTION> <SECTION> <SECTNO>§ 525.8</SECTNO> <SUBJECT>Special provisions for temporary authority.</SUBJECT> <P>(a) Temporary authority may be granted to an employer permitting the employment of workers with disabilities pursuant to a vocational rehabilitation program of the Veterans Administration for veterans with a service-incurred disability or a vocational rehabilitation program administered by a State agency.</P> <P>(b) Temporary authority is effective for 90 days from the date the appropriate section of the application form is signed and completed by the duly designated representative of the State agency or the Veterans Administration. Such authority may not be renewed or extended by the issuing agency.</P> <P>(c) The signed application constitutes the temporary authority to employ workers with disabilities at special minimum wage rates. A copy of the application must be forwarded within 10 days to the appropriate Regional Office of the Wage and Hour Division. Upon receipt, the application will be reviewed and, where appropriate, a certificate will be issued by the Regional Office. Where additional information is required or certification is denied, the applicant will receive notification from the Regional Office.</P> </SECTION> <SECTION> <SECTNO>§ 525.9</SECTNO> <SUBJECT>Criteria for employment of workers with disabilities under certificates at special minimum wage rates.</SUBJECT> <P>(a) In order to determine that special minimum wage rates are necessary in <PRTPAGE P="160"/>order to prevent the curtailment of opportunities for employment, the following criteria will be considered:</P> <P>(1) The nature and extent of the disabilities of the individuals employed as these disabilities relate to the individuals' productivity;</P> <P>(2) The prevailing wages of experienced employees not disabled for the job who are employed in the vicinity in industry engaged in work comparable to that performed at the special minimum wage rate;</P> <P>(3) The productivity of the workers with disabilities compared to the norm established for nondisabled workers through the use of a verifiable work measurement method (see § 525.12(h)) or the productivity of experienced nondisabled workers employed in the vicinity on comparable work; and,</P> <P>(4) The wage rates to be paid to the workers with disabilities for work comparable to that performed by experienced nondisabled workers.</P> <P>(b) In order to be granted a certificate authorizing the employment of workers with disabilities at special minimum wage rates, the employer must provide the following written assurances concerning such employment:</P> <P>(1) In the case of individuals paid hourly rates, the special minimum wage rates will be reviewed by the employer at periodic intervals at a minimum of once every six months; and,</P> <P>(2) Wages for all employees will be adjusted by the employer at periodic intervals at a minimum of once each year to reflect changes in the prevailing wages paid to experienced nondisabled individuals employed in the locality for essentially the same type of work.</P> </SECTION> <SECTION> <SECTNO>§ 525.10</SECTNO> <SUBJECT>Prevailing wage rates.</SUBJECT> <P>(a) A prevailing wage rate is a wage rate that is paid to an experienced worker not disabled for the work to be performed. The Department recognizes that there may be more than one wage rate for a specific type of work in a given area. An employer must be able to demonstrate that the rate being used as prevailing for determining a commensurate wage was objectively determined according to the guidelines contained in this section.</P> <P>(b) An employer whose work force primarily consists of nondisabled workers or who employs more than a token number of nondisabled workers doing similar work may use as the prevailing wage the wage rate paid to that employer's experienced nondisabled employees performing similar work. Where an agency places a worker or workers with disabilities on the premises of an employer described above, the wage paid to the employer's experienced workers may be used as prevailing.</P> <P>(c) An employer whose work force primarily consists of workers disabled for the work to be performed may determine the prevailing wage by ascertaining the wage rates paid to the experienced nondisabled workers of other employers in the vicinity. Such data may be obtained by surveying comparable firms in the area that employ primarily nondisabled workers doing similar work. The firms surveyed must be representative of comparable firms in terms of wages paid to experienced workers doing similar work. The appropriate size of such a sample will depend on the number of firms doing similar work but should include no less than three firms unless there are fewer firms doing such work in the area. A comparable firm is one which is of similar size in terms of employees or which competes for or bids on contracts of a similar size or nature. Employers may contact other sources such as the Bureau of Labor Statistics or private or State employment services where surveys are not practical. If similar work cannot be found in the area defined by the geographic labor market, the closest comparable community may be used.</P> <P>(d) The prevailing wage rate must be based upon the wage rate paid to experienced nondisabled workers as defined elsewhere in these regulations. Employment services which only provide entry level wage data are not acceptable as sources for prevailing wage information as required in these regulations.</P> <P>(e) There is no prescribed method for tabulating the results of a prevailing wage survey. For example, either a weighted or unweighted average would <PRTPAGE P="161"/>be acceptable provided the employer is consistent in the methodology used.</P> <P>(f) The prevailing wage must be based upon work utilizing similar methods and equipment. Where the employer is unable to obtain the prevailing wage for a specific job to be performed on the premises, such as collating documents, it would be acceptable to use as the prevailing wage the wage paid to experienced individuals employed in similar jobs such as file clerk or general office clerk, requiring the same general skill levels.</P> <P>(g) The following information should be recorded in documenting the determination of prevailing wage rates:</P> <P>(1) Date of contact with firm or other source;</P> <P>(2) Name, address, and phone number of firm or other source contacted;</P> <P>(3) Individual contacted within firm or source;</P> <P>(4) Title of individual contacted;</P> <P>(5) Wage rate information provided;</P> <P>(6) Brief description of work for which wage information is provided;</P> <P>(7) Basis for the conclusion that wage rate is not based upon an entry level position. (See also § 525.10(c).)</P> <P>(h) A prevailing wage may not be less than the minimum wage specified in section 6(a) of FLSA.</P> </SECTION> <SECTION> <SECTNO>§ 525.11</SECTNO> <SUBJECT>Issuance of certificates.</SUBJECT> <P>(a) Upon consideration of the criteria cited in these regulations, a special certificate may be issued.</P> <P>(b) If a special minimum wage certificate is issued, a copy shall be sent to the employer. If denied, the employer will be notified in writing and told the reasons for the denial, as well as the right to petition under § 525.18.</P> </SECTION> <SECTION> <SECTNO>§ 525.12</SECTNO> <SUBJECT>Terms and conditions of special minimum wage certificates.</SUBJECT> <P>(a) A special minimum wage certificate shall specify the terms and conditions under which it is granted.</P> <P>(b) A special minimum wage certificate shall apply to all workers employed by the employer to which the special certificate is granted provided such workers are in fact disabled for the work they are to perform.</P> <P>(c) A special minimum wage certificate shall be effective for a period to be designated by the Administrator. Workers with disabilities may be paid wages lower than the statutory minimum wage rate set forth in section 6 of FLSA only during the effective period of the certificate.</P> <P>(d) Workers paid under special minimum wage certificates shall be paid wages commensurate with those paid experienced nondisabled workers employed in the vicinity in which they are employed for essentially the same type, quality, and quantity of work.</P> <P>(e) Workers with disabilities shall be paid not less than one and one-half times their regular rates of pay for all hours worked in excess of the maximum workweek applicable under section 7 of FLSA.</P> <P>(f) The wages of all workers paid a special minimum wage under this part shall be adjusted by the employer at periodic intervals at a minimum of once a year to reflect changes in the prevailing wages paid to experienced individuals not disabled for the work to be performed employed in the vicinity for essentially the same type of work.</P> <P>(g) Each worker with a disability and, where appropriate, a parent or guardian of the worker, shall be informed, orally and in writing, of the terms of the certificate under which such worker is employed. This requirement may be satisfied by making copies of the certificate available. Where a worker with disabilities displays an understanding of the terms of a certificate and requests that other parties not be informed, it is not necessary to inform a parent or guardian.</P> <P>(h) In establishing piece rates for workers with disabilities, the following criteria shall be used:</P> <P>(1) Industrial work measurement methods such as stop watch time studies, predetermined time systems, standard data, or other measurement methods (hereinafter referred to as “work measurement methods”) shall be used by the employer to establish standard production rates of workers not disabled for the work to be performed. The Department will accept the use of whatever method an employer chooses to use. However, the employer has the responsibility of demonstrating that a particular method is generally accepted by industrial <PRTPAGE P="162"/>engineers and has been properly executed. No specific training or certification will be required. Where work measurement methods have already been applied by another employer or source, and documentation exists to show that the methods used are the same, it is not necessary to repeat these methods to establish production standards.</P> <P>(i) The piece rates shall be based on the standard production rates (number of units an experienced worker not disabled for the work is expected to produce per hour) and the prevailing industry wage rate paid experienced nondisabled workers in the vicinity for essentially the same type and quality of work or for work requiring similar skill. (Prevailing industry wage rate divided by the standard number of units per hour equals the piece rate.).</P> <P>(ii) Piece rates shall not be less than the prevailing piece rates paid experienced workers not disabled for the work doing the same or similar work in the vicinity when such piece rates exist and can be compared with the actual employment situations of the workers with disabilities.</P> <P>(2) Any work measurement method used to establish piece rates shall be verifiable through the use of established industrial work measurement techniques.</P> <P>(i) If stop watch time studies are made, they shall be made with a person or persons whose productivity represents normal or near normal performance. If their productivity does not represent normal or near normal performance, adjustments of performance shall be made. Such adjustments, sometimes called “performance rating” or “leveling” shall be made only by a person knowledgeable in this technique, as evidenced by successful completion of training in this area. The persons observed should be given time to practice the work to be performed in order to provide them with an opportunity to overcome the initial learning curve. The persons observed shall be trained to use the specific work method and tools which are available to workers with disabilities employed under special minimum wage certificates.</P> <P>(ii) Appropriate time shall be allowed for personal time, fatigue, and unavoidable delays. Generally, not less than 15% allowances (9-10 minutes per hour) shall be used in conducting time studies.</P> <P>(iii) Work measurements shall be conducted using the same work method that will be utilized by the workers with disabilities. When modifications such as jigs or fixtures are made to production methods to accommodate special needs of individual workers with disabilities, additional work measurements need not be conducted where the modifications enable the workers with disabilities to perform the work or increase productivity but would impede a worker without disabilities. Where workers with disabilities do not have a method available to them, as for example where an adequate number of machines are not available, a second work measurement should be conducted.</P> <P>(i) Each worker with a disability employed on a piece rate basis should be paid full earnings. Employers may “pool” earnings only where piece rates cannot be established for each individual worker. An example of this situation is a team production operation where each worker's individual contribution to the finished product cannot be determined separately. However, in such situations, the employer should make every effort to objectively divide the earnings according to the productivity level of each individual worker.</P> <P>(j) The following terms shall be met for workers with disabilities employed at hourly rates:</P> <P>(1) Hourly rates shall be based upon the prevailing hourly wage rates paid to experienced workers not disabled for the job doing essentially the same type of work and using similar methods or equipment in the vicinity. (See also § 525.10.)</P> <P>(2) An initial evaluation of a worker's productivity shall be made within the first month after employment begins in order to determine the worker's commensurate wage rate. The results of the evaluation shall be recorded and the worker's wages shall be adjusted accordingly no later than the first complete pay period following the initial evaluation. Each worker is entitled <PRTPAGE P="163"/>to commensurate wages for all hours worked. Where the wages paid to the worker during pay periods prior to the initial evaluation were less than the commensurate wage indicated by the evaluation, the employer must compensate the worker for any such difference unless it can be demonstrated that the initial payments reflected the commensurate wage due at that time.</P> <P>(3) Upon completion of not more than six months of employment, a review shall be made with respect to the quantity and quality of work of each hourly-rated worker with a disability as compared to that of nondisabled workers engaged in similar work or work requiring similar skills and the findings shall be recorded. The worker's productivity shall then be reviewed and the findings recorded at least every 6 months thereafter. A review and recording of productivity shall also be made after a worker changes jobs and at least every 6 months thereafter. The worker's wages shall be adjusted accordingly no later than the first complete pay period following each review. Conducting reviews at six-month intervals should be viewed as a minimum requirement since workers with disabilities are entitled to commensurate wages for all hours worked. Reviews must be conducted in a manner and frequency to insure payment of commensurate wages. For example, evaluations should not be conducted before a worker has had an opportunity to become familiar with the job or at a time when the worker is fatigued or subject to conditions that result in less than normal productivity.</P> <P>(4) Each review should contain, as a minimum and in addition to the data cited above, the following: name of the individual being reviewed; date and time of the review; and, name and position of the individual doing the review.</P> </SECTION> <SECTION> <SECTNO>§ 525.13</SECTNO> <SUBJECT>Renewal of special minimum wage certificates.</SUBJECT> <P>(a) Applications may be filed for renewal of special minimum wage certificates.</P> <P>(b) If an application for renewal has been properly and timely filed, an existing special minimum wage certificate shall remain in effect until the application for renewal has been granted or denied.</P> <P>(c) Workers with disabilities may not continue to be paid special minimum wages after notice that an application for renewal has been denied.</P> <P>(d) Except in cases of willfulness or those in which the public interest requires otherwise, before an application for renewal is denied facts or conduct which may warrant such action shall be called to the attention of the employer in writing and such employer shall be afforded an opportunity to demonstrate or achieve compliance with all legal requirements.</P> </SECTION> <SECTION> <SECTNO>§ 525.14</SECTNO> <SUBJECT>Posting of notices.</SUBJECT> <P>Every employer having workers who are employed under special minimum wage certificates shall at all times display and make available to employees a poster as prescribed and supplied by the Administrator. The Administrator will make available, upon request, posters in other formats such as Braille or recorded tapes. Such a poster will explain, in general terms, the conditions under which special minimum wages may be paid and shall be posted in a conspicuous place on the employer's premises where it may be readily observed by the workers with disabilities, the parents and guardians of such workers, and other workers. Where an employer finds it inappropriate to post such a notice, this requirement may be satisfied by providing the poster directly to all employees subject to its terms.</P> </SECTION> <SECTION> <SECTNO>§ 525.15</SECTNO> <SUBJECT>Industrial homework.</SUBJECT> <P>(a) Where the employer is an organization or institution carrying out a recognized program of rehabilitation for workers with disabilities and holds a special certificate issued pursuant to this part, certification under regulations governing the employment of industrial homeworkers (29 CFR part 530) is not required.</P> <P>(b) For all other types of employers, special rules apply to the employment of homeworkers in the following industries: Jewelry manufacturing, knitted outerwear, gloves and mittens, buttons and buckles, handkerchief manufacturing, embroideries, and women's apparel. (See 29 CFR part 530.)</P> </SECTION> <SECTION> <PRTPAGE P="164"/> <SECTNO>§ 525.16</SECTNO> <SUBJECT>Records to be kept by employers.</SUBJECT> <P>Every employer, or where appropriate (in the case of records verifying the workers' disabilities) the referring agency or facility, of workers employed under special minimum wage certificates shall maintain and have available for inspection records indicating:</P> <P>(a) Verification of the workers' disabilities;</P> <P>(b) Evidence of the productivity of each worker with a disability gathered on a continuing basis or at periodic intervals (not to exceed six months in the case of employees paid hourly wage rates);</P> <P>(c) The prevailing wages paid workers not disabled for the job performed who are employed in industry in the vicinity for essentially the same type of work using similar methods and equipment as that used by each worker with disabilities employed under a special minimum wage certificate (see also § 525.10(b) and (d));</P> <P>(d) The production standards and supporting documentation for nondisabled workers for each job being performed by workers with disabilities employed under special certificates; and</P> <P>(e) The records required under all of the applicable provisions of part 516 of this title, except that any provision pertaining to homeworker handbooks shall not be applicable to workers with disabilities who are employed by a recognized nonprofit rehabilitation facility and working in or about a home, apartment, tenement, or room in a residential establishment. (See § 525.15) Records required by this section shall be maintained and preserved for the periods specified in part 516 of this title.</P> <APPRO>(Approved by the Office of Management and Budget under control number 1215-0017)</APPRO> </SECTION> <SECTION> <SECTNO>§ 525.17</SECTNO> <SUBJECT>Revocation of certificates.</SUBJECT> <P>(a) A special minimum wage certificate may be revoked for cause at any time. A certificate may be revoked:</P> <P>(1) As of the date of issuance, if it is found that misrepresentations or false statements have been made in obtaining the certificate or in permitting a worker with a disability to be employed thereunder;</P> <P>(2) As of the date of violation, if it is found that any of the provisions of FLSA or of the terms of the certificate have been violated; or</P> <P>(3) As of the date of notice of revocation, if it is found that the certificate is no longer necessary in order to prevent curtailment of opportunities for employment, or that the requirements of these regulations other than those referred to in paragraph (a)(2) of this section have not been complied with.</P> <P>(b) Except in cases of willfulness or those in which the public interest requires otherwise, before any certificate shall be revoked, facts or conduct which may warrant such action shall be called to the attention of the employer in writing and such employer shall be afforded an opportunity to demonstrate or achieve compliance with all legal requirements.</P> </SECTION> <SECTION> <SECTNO>§ 525.18</SECTNO> <SUBJECT>Review.</SUBJECT> <P>Any person aggrieved by any action of the Administrator taken pursuant to this part may, within 60 days or such additional time as the Administrator may allow, file with the Administrator a petition for review. Such review, if granted, shall be made by the Administrator. Other interested persons, to the extent it is deemed appropriate, may be afforded an opportunity to present data and views.</P> </SECTION> <SECTION> <SECTNO>§ 525.19</SECTNO> <SUBJECT>Investigations and hearings.</SUBJECT> <P>The Administrator may conduct an investigation, which may include a hearing, prior to taking any action pursuant to these regulations. To the extent it is deemed appropriate, the Administrator may provide an opportunity to other interested persons to present data and views. Proceedings initiated pursuant to this section are separate from those taken pursuant to FLSA section 14(c)(5) and § 525.22.</P> </SECTION> <SECTION> <SECTNO>§ 525.20</SECTNO> <SUBJECT>Relation to other laws.</SUBJECT> <P>No provision of these regulations, or of any special minimum wage certificate issued thereunder, shall excuse noncompliance with any other Federal or State law or municipal ordinance establishing higher standards.</P> </SECTION> <SECTION> <PRTPAGE P="165"/> <SECTNO>§ 525.21</SECTNO> <SUBJECT>Lowering of wage rates.</SUBJECT> <P>(a) No employer may reduce the minimum hourly wage rate, guaranteed by a special minimum wage certificate in effect on June 1, 1986, of any worker with disabilities from June 1, 1986 until May 31, 1988, without prior authorization of the Secretary.</P> <P>(b) This provision applies to those workers with disabilities who were:</P> <P>(1) Employed during the pay period which included June 1, 1986, even if no work was performed during that pay period; and</P> <P>(2) Employed under a group or individual special minimum wage certificate which specified a minimum guaranteed rate, i.e., a special certificate issued under former section 14(c) (1) or (2)(b) of FLSA.</P> <P>(c) In order to obtain authority to lower the wage rate of a worker with a disability to whom this provision applies to a rate below the certificate rate, the employer must submit information as prescribed under this section to the appropriate Regional Office. The burden of establishing the necessity of lowering the wage of a worker with a disability rests with the employer.</P> <P>(d) In reviewing a request to lower a wage rate of a worker with a disability, documented evidence of the following will be considered:</P> <P>(1) Any change in the worker's disabling condition which has a substantially negative impact on productive capacity;</P> <P>(2) Any change in the type of work being performed in the facility which would affect the productivity of the worker with a disability or which would result in the application of a lower prevailing wage rate;</P> <P>(3) Any change in general economic conditions in the locality in which the work is performed which results in lower prevailing wage rates.</P> <P>(e) A wage rate may not be lowered until authorization is obtained.</P> </SECTION> <SECTION> <SECTNO>§ 525.22</SECTNO> <SUBJECT>Employee's right to petition.</SUBJECT> <P>(a) Any employee receiving a special minimum wage at a rate specified pursuant to subsection 14(c) of FLSA or the parent or guardian of such an employee may petition the Secretary to obtain a review of such special minimum wage rate. No particular form of petition is required, except that a petition must be signed by the individual, or the parent or guardian of the individual, and should contain the name and address of the employee and the name and address of the employee's employer. A petition may be filed in person or by mail with the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Room S3502, 200 Constitution Avenue NW., Washington, DC 20210. The petitioner may be represented by counsel in any stage of such proceedings. Upon receipt, the petition shall be forwarded immediately to the Chief Administrative Law Judge.</P> <P>(b) Upon receipt of a petition, the Chief Administrative Law Judge shall, within 10 days of the receipt of the petition by the Secretary, appoint an Administrative Law Judge (ALJ) to hear the case. Upon receipt, the ALJ shall notify the employer named in the petition. The ALJ shall also notify the employee, the employer, the Administrator, and the Associate Solicitor for Fair Labor Standards of the time and place of the hearing. The date of the hearing shall be not more than 30 days after the assignment of the case to the ALJ. All the parties shall be given at least eight days' notice of such hearing. Because of the time constraints imposed by the statute, requests for postponement shall be granted only sparingly and for compelling reasons.</P> <P>(c) Hearings held under this subpart shall be conducted, consistent with statutory time limitations, under the Department's rules of practice and procedure for administrative hearings found in 29 CFR part 18. There shall be a minimum of formality in the proceeding consistent with orderly procedure. Any employer who intends to participate in the proceeding shall provide to the ALJ, and shall serve on the petitioner and the Associate Solicitor for Fair Labor Standards no later than 15 days prior to the commencement of the hearing, or as soon as practical depending on when the notice of a hearing as required under paragraph (b) of this section was received, that documentary evidence pertaining to the employee or employees identified in the petition which is contained in the <PRTPAGE P="166"/>records required by § 525.16 (a), (b), (c) and (d). The Administrator shall be permitted to participate by counsel in the proceeding upon application.</P> <P>(d) In determining whether any special minimum wage rate is justified, the ALJ shall consider, to the extent evidence is available, the productivity of the employee or employees identified in the petition and the conditions under which such productivity was measured, and the productivity of other employees performing work of essentially the same type and quality for other employers in the same vicinity and the conditions under which much productivity was mesured. In these proceedings, the burden of proof on all matters relating to the propriety of a wage at issue shall rest with the employer.</P> <P>(e) The ALJ shall issue a decision within 30 days after the termination of the hearing and shall serve the decision on the Administrator and all interested parties by Express Mail or other similar system guaranteeing one-day delivery. The decision shall contain appropriate findings and conclusions and an order. If the ALJ finds that the special minimum wage being paid or which has been paid is not justified, the order shall specify the lawful rate and the period of employment to which the rate is applicable. In the absence of evidence sufficient to support the conclusion that the proper wage should be less than the minimum wage, the ALJ shall order that the minimum wage be paid.</P> <P>(f) Within 15 days after the date of the decision of the ALJ, the petitioner, the Administrator, or the employer who seeks review thereof may request review by the Secretary. No particular form of request is required, except that a request must be in writing and must attach a copy of the ALJ's decision. Requests for review shall be filed with the Secretary of Labor, 200 Constitution Ave. NW., Washington, DC 20210. Any other interested party may file a reply thereto with the Secretary and the Administrator within 5 working days of receipt of such request for review. The request for review and reply thereto shall be transmitted by the Administrator to all interested parties by Express Mail or other similar system guaranteeing one-day delivery.</P> <P>(g) The decision of the ALJ shall be deemed to be final agency action 30 days after issuance thereof, unless within 30 days of the date of the decision the Secretary grants a request to review the decision. Where such request for review is granted, within 30 days after receipt of such request the Secretary shall review the record and shall either adopt the decision of the ALJ or issue exceptions. The decision of the ALJ, together with any exceptions issued by the Secretary, shall be deemed to be a final agency action.</P> <P>(h) Within 30 days of issuance of the final action of the Secretary reviewing the decision of the ALJ or declining to grant such review, any person adversely affected or aggrieved by such action may seek judicial review pursuant to chapter 7 of title 5, United States Code. The record of the case, including the record of proceedings before the ALJ, shall be transmitted by the Secretary to the appropriate court pursuant to the rules of such court.</P> </SECTION> <SECTION> <SECTNO>§ 525.23</SECTNO> <SUBJECT>Work activities centers.</SUBJECT> <P>Nothing in these regulations shall be interpreted to prevent an employer from maintaining or establishing work activities centers to provide therapeutic activities for workers with disabilities as long as the employer complies with the requirement of these regulations. Work activities centers shall include centers planned and designed to provide therapeutic activities for workers with severe disabilities affecting their productive capacity. Any establishment whose workers with disabilities are employed at special minimum wages must comply with the requirements of this part, regardless of the designation of such establishment.</P> </SECTION> <SECTION> <SECTNO>§ 525.24</SECTNO> <SUBJECT>Advisory Committee on Special Minimum Wages.</SUBJECT> <P>The Advisory Committee on Special Minimum Wages, the members of which are appointed by the Secretary, shall advise and make recommendations to the Administrator concerning the administration and enforcement of these regulations and the need for amendments thereof and shall serve <PRTPAGE P="167"/>such other functions as may be desired by the Administrator.</P> </SECTION> </PART> <PART> <RESERVED>PART 527 [RESERVED]</RESERVED> </PART> <PART> <EAR>Pt. 528</EAR> <HD SOURCE="HED">PART 528—ANNULMENT OR WITHDRAWAL OF CERTIFICATES FOR THE EMPLOYMENT OF STUDENT-LEARNERS, APPRENTICES, LEARNERS, MESSENGERS, HANDICAPPED PERSONS, STUDENT-WORKERS, AND FULL-TIME STUDENTS IN AGRICULTURE OR IN RETAIL OR SERVICE ESTABLISHMENTS AT SPECIAL MINIMUM WAGE RATES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>528.1</SECTNO> <SUBJECT>Applicability of the regulations in this part.</SUBJECT> <SECTNO>528.2</SECTNO> <SUBJECT>Definition of terms.</SUBJECT> <SECTNO>528.3</SECTNO> <SUBJECT>Withdrawal and annulment of certificates.</SUBJECT> <SECTNO>528.4</SECTNO> <SUBJECT>According opportunity to demonstrate or achieve compliance.</SUBJECT> <SECTNO>528.5</SECTNO> <SUBJECT>Proceedings for withdrawal or annulment.</SUBJECT> <SECTNO>528.6</SECTNO> <SUBJECT>Review.</SUBJECT> <SECTNO>528.7</SECTNO> <SUBJECT>Effect of order of annulment or withdrawal.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 14, 52 Stat. 1068, as amended; 29 U.S.C. 214, unless otherwise noted.</P> </AUTH> <SECTION> <SECTNO>§ 528.1</SECTNO> <SUBJECT>Applicability of the regulations in this part.</SUBJECT> <P>The regulations in this part shall govern the annulment or withdrawal of any certificate except a temporary certificate issued pending final action on an application, issued pursuant to parts 519, 520, 521, 522, 523, 524, and 527 of this chapter, and having effect under section 14 of the Fair Labor Standards Act of 1938.</P> <CITA>[27 FR 3994, Apr. 26, 1962]</CITA> </SECTION> <SECTION> <SECTNO>§ 528.2</SECTNO> <SUBJECT>Definition of terms.</SUBJECT> <P>As used in the regulations contained in this part, the term:</P> <P>(a) <E T="03">Withdrawal</E> shall mean termination of validity of a certificate with prospective effect from the time of the action of withdrawal.</P> <P>(b) <E T="03">Annulment</E> shall mean withdrawal of a certificate with retroactive effect to the date of issuance.</P> <P>(c) <E T="03">Authorized representative</E> shall mean: (1) The Assistant Regional Administrators for the Wage and Hour Division (who are authorized to redelegate this authority) within their respective regions, and (2) the Caribbean Director of the Wage and Hour Division for the area covered by the Caribbean office.</P> <P>(d) <E T="03">Area director</E> shall include any area director of the Wage and Hour Division.</P> <SECAUTH>(Secretary's Order No. 16-75, dated Nov. 25, 1975 (40 FR 55913). Employment Standards Order No. 76-2, dated Feb. 23, 1976 (41 FR 9016))</SECAUTH> <CITA>[43 FR 28469, June 30, 1978]</CITA> </SECTION> <SECTION> <SECTNO>§ 528.3</SECTNO> <SUBJECT>Withdrawal and annulment of certificates.</SUBJECT> <P>(a) An authorized representative may withdraw a certificate from any employer within that representative's region who, acting under color of any certificate or application for the employment of learners, handicapped workers, student workers, student learners, apprentices, messengers, or full-time students in agriculture, retail, or service establishments, or in institutions of higher education at subminimum wages under section 14 of the act, fails to comply with the limitations in such certificate or otherwise violates the act.</P> <P>(b) An authorized representative may annul a certificate affected by mistake in its issuance if the employer knowingly induced or knowingly took advantage of the mistake. Where the employer did not knowingly induce the mistake but knowingly took advantage of it, a new certificate shall be issued by the authorized representative if, and on such terms as, such certificate would have been issued had there been no mistake limited in its term from the date of issuance to the date of annulment of the annulled certificate.</P> <P>(c) A certificate may be withdrawn in the public interest by a representative authorized to issue such type of certificate whenever any part of the exemption it provides is no longer necessary to prevent curtailment of opportunities for employment. If appropriate, a more limited replacement certificate may be <PRTPAGE P="168"/>issued by the authorized representative.</P> <SECAUTH>(Secretary's Order No. 16-75, dated Nov. 25, 1975 (40 FR 55913); Employment Standards Order No. 76-2, dated Feb. 23, 1976 (41 FR 9016))</SECAUTH> <CITA>[43 FR 28469, June 30, 1978]</CITA> </SECTION> <SECTION> <SECTNO>§ 528.4</SECTNO> <SUBJECT>According opportunity to demonstrate or achieve compliance.</SUBJECT> <P>Prior to instituting proceedings for withdrawal of a certificate under paragraph (a) of § 528.3, except in cases of willfullness, an area director shall mail a letter to the employer setting forth alleged facts or conduct which may warrant withdrawal of the certificate, and fixing a time and a place for a conference at which the employer shall be accorded an opportunity to show that no cause for withdrawal under § 528.3(a) exists or that compliance has been achieved by paying wages improperly withheld and by taking steps adequate to insure that new cause for annulment or withdrawal will not occur. By written report to the appropriate authorized representative, a copy of which shall be mailed to the employer, the area director shall concisely summarize the conference and shall include conclusions as to whether the employer demonstrated or achieved compliance. If the authorized representative is satisfied that the employer either demonstrated or achieved such compliance, no proceedings shall be instituted under § 528.3(a) for the withdrawal of the certificate.</P> <SECAUTH>(Secretary's Order No. 16-75, dated Nov. 25, 1975 (40 FR 55913), Employment Standards Order 76-2, dated Feb. 23, 1976 (41 FR 9016))</SECAUTH> <CITA>[43 FR 28469, June 30, 1978]</CITA> </SECTION> <SECTION> <SECTNO>§ 528.5</SECTNO> <SUBJECT>Proceedings for withdrawal or annulment.</SUBJECT> <P>The representative authorized to withdraw or annul a certificate under § 528.3 shall institute proceedings by a letter mailed to the employer and, where appropriate, to the apprenticeship agency (in the case of apprentice certificates) or the responsible school official (in the case of student-learner certificates), setting forth alleged facts which may warrant such annulment or withdrawal and advising the employer that such an annulment or withdrawal of the scope provided in § 528.7 will take effect at a time specified unless facts are presented which convince the authorized representative that such action should not be taken. The letter shall advise such person, agency, or official of the right to respond by mail or to appear by or with counsel or by other duly qualified representative at a specified time and place. If there is no timely objection to the withdrawal or annulment thus proposed, it shall be deemed effective according to the terms of the letter instituting the annulment or withdrawal proceeding without the necessity of any further action. If objection to the annulment or withdrawal as proposed is made within the specified time the further proceedings shall be as informal as practicable commensurate with orderly dispatch and fairness. Department of Labor investigation files or reports or portions thereof may be considered in such proceedings to the extent they are made available for examination during the proceedings. If objection to the proposed annulment or withdrawal is made by such specified time, the authorized representative shall, after considering all pertinent matters presented, mail a letter to the employer and, where appropriate, to the apprenticeship agency or the responsible school official, setting out that representative's findings of specific pertinent facts and conclusions and that representative's order concerning the proposed annulment or withdrawal. In proceedings instituted for annulment, the order may provide for withdrawal instead of annulment if the proof warrants such withdrawal but fails to support adequately the annulment. Such an order shall be deemed issued and effective according to its terms when mailed.</P> <SECAUTH>(Secretary's Order No. 16-75, dated Nov. 25, 1975 (40 FR 55913); Employment Standards Order No. 76-2, dated Feb. 23, 1976 (41 FR 9016))</SECAUTH> <CITA>[43 FR 28469, June 30, 1978]</CITA> </SECTION> <SECTION> <SECTNO>§ 528.6</SECTNO> <SUBJECT>Review.</SUBJECT> <P>Any employer and, when appropriate, any apprenticeship agency or responsible school official, who expressed timely objection to the proposed action <PRTPAGE P="169"/>prior to issuance of an order of annulment or withdrawal may obtain review, limited to the question of whether the findings of fact support the order under the regulations in this part. Application for such review shall be in writing addressed to the Administrator and mailed within 15 days after the order is issued. The Administrator may affirm, modify, or reverse the order, or may remand it for further proceedings. The order under review shall not be stayed in effect pending such review. Any aggrieved person may obtain such review of an order entered in proceedings instituted under paragraph (c) of § 528.3.</P> <CITA>[21 FR 5316, July 17, 1956, as amended at 22 FR 5683, July 18, 1957]</CITA> </SECTION> <SECTION> <SECTNO>§ 528.7</SECTNO> <SUBJECT>Effect of order of annulment or withdrawal.</SUBJECT> <P>Except as otherwise expressly provided in such order, any order of annulment or withdrawal under paragraph (a) or (b) of § 528.3 shall be effective to terminate all certifications to which the regulations in this part apply in effect at the establishment where the cause for withdrawal arose or where the annulled certificate had effect. After such annulment or withdrawal, such employer shall be ineligible to obtain or exercise the privileges granted in such a certificate until he satisfies the issuing officer that he will not again give cause for annulment or withdrawal if a certificate is issued.</P> <SECAUTH>(Secretary's Order No. 16-75, dated Nov. 25, 1975 (40 FR 55913); Employment Standards Order No 76-2, dated Feb. 23, 1976 (41 FR 9016))</SECAUTH> <CITA>[43 FR 28469, June 30, 1978]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 530</EAR> <HD SOURCE="HED">PART 530—EMPLOYMENT OF HOMEWORKERS IN CERTAIN INDUSTRIES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>530.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>530.2</SECTNO> <SUBJECT>Restriction of homework.</SUBJECT> <SECTNO>530.3</SECTNO> <SUBJECT>Application forms for individual homeworker certificates.</SUBJECT> <SECTNO>530.4</SECTNO> <SUBJECT>Terms and conditions for the issuance of individual homeworker certificates.</SUBJECT> <SECTNO>530.5</SECTNO> <SUBJECT>Investigation.</SUBJECT> <SECTNO>530.6</SECTNO> <SUBJECT>Termination of individual homeworker certificates.</SUBJECT> <SECTNO>530.7</SECTNO> <SUBJECT>Revocation and cancellation of individual homeworker certificates.</SUBJECT> <SECTNO>530.8</SECTNO> <SUBJECT>Preservation of individual homeworker certificates.</SUBJECT> <SECTNO>530.9</SECTNO> <SUBJECT>Records and reports.</SUBJECT> <SECTNO>530.10</SECTNO> <SUBJECT>Delegation of authority to grant, deny, or cancel an individual homeworker certificate.</SUBJECT> <SECTNO>530.11</SECTNO> <SUBJECT>Petition for review.</SUBJECT> <SECTNO>530.12</SECTNO> <SUBJECT>Special provisions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Homeworker Employer Certificates</HD> <SECTNO>530.101</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>530.102</SECTNO> <SUBJECT>Requests for employer certificates.</SUBJECT> <SECTNO>530.103</SECTNO> <SUBJECT>Employer assurances.</SUBJECT> <SECTNO>530.104</SECTNO> <SUBJECT>Bonding or security payments.</SUBJECT> <SECTNO>530.105</SECTNO> <SUBJECT>Investigations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Denial/Revocation of Homeworker Employer Certificates</HD> <SECTNO>530.201</SECTNO> <SUBJECT>Conflict with State law.</SUBJECT> <SECTNO>530.202</SECTNO> <SUBJECT>Piece rates—work measurement.</SUBJECT> <SECTNO>530.203</SECTNO> <SUBJECT>Outstanding violations and open investigations.</SUBJECT> <SECTNO>530.204</SECTNO> <SUBJECT>Discretionary denial or revocation.</SUBJECT> <SECTNO>530.205</SECTNO> <SUBJECT>Mandatory denial or revocation.</SUBJECT> <SECTNO>530.206</SECTNO> <SUBJECT>Special circumstances.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Civil Money Penalties</HD> <SECTNO>530.301</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>530.302</SECTNO> <SUBJECT>Amounts of civil money penalties.</SUBJECT> <SECTNO>530.303</SECTNO> <SUBJECT>Considerations in determining amounts.</SUBJECT> <SECTNO>530.304</SECTNO> <SUBJECT>Procedures for assessment.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Administrative Procedures</HD> <SECTNO>530.401</SECTNO> <SUBJECT>Applicability of procedures and rules.</SUBJECT> <SECTNO>530.402</SECTNO> <SUBJECT>Notice of determination.</SUBJECT> <SECTNO>530.403</SECTNO> <SUBJECT>Request for hearing.</SUBJECT> <SECTNO>530.404</SECTNO> <SUBJECT>Referral to Administrative Law Judge.</SUBJECT> <SECTNO>530.405</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>530.406</SECTNO> <SUBJECT>Decision and order of Administrative Law Judge.</SUBJECT> <SECTNO>530.407</SECTNO> <SUBJECT>Procedures for initiating and undertaking review.</SUBJECT> <SECTNO>530.408</SECTNO> <SUBJECT>Notice of the Secretary to review decision.</SUBJECT> <SECTNO>530.409</SECTNO> <SUBJECT>Final decision of the Secretary.</SUBJECT> <SECTNO>530.410</SECTNO> <SUBJECT>Special procedures.</SUBJECT> <SECTNO>530.411</SECTNO> <SUBJECT>Emergency certificate revocation procedures.</SUBJECT> <SECTNO>530.412</SECTNO> <SUBJECT>Alternative summary proceedings.</SUBJECT> <SECTNO>530.413</SECTNO> <SUBJECT>Certification of the record.</SUBJECT> <SECTNO>530.414</SECTNO> <SUBJECT>Equal Access to Justice Act.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 11, 52 Stat. 1066 (29 U.S.C. 211) as amended by sec. 9, 63 Stat. 910 (29 U.S.C. 211(d)); Secretary's Order No. 6-84, 49 FR 32473, August 14, 1984; and Employment Standards Order No. 85-01, June 5, 1985.</P> </AUTH> <SOURCE> <PRTPAGE P="170"/> <HD SOURCE="HED">Source:</HD> <P>24 FR 729, Feb. 3, 1959, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 530.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) The meaning of the terms person, employ, employer, employee, goods, and production, as used in this part, is the same as in the Fair Labor Standards Act of 1938, as amended.</P> <P>(b) <E T="03">Administrator</E> as used in this part means the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, or an authorized representative of the Administrator.</P> <P>(c) <E T="03">Industrial homeworker</E> and <E T="03">homeworker,</E> as used in this part, mean any employee employed or suffered or permitted to perform industrial homework for an employer.</P> <P>(d) <E T="03">Industrial homework,</E> as used in this part, means the production by any person in or about a home, apartment, tenement, or room in a residential establishment of goods for an employer who suffers or permits such production, regardless of the source (whether obtained from an employer or elsewhere) of the materials used by the homeworker in such production.</P> <P>(e) The women's apparel industry is defined as follows: The production of women's, misses' and juniors' dresses, washable service garments, blouses, and neckwear from woven or purchased knit fabric; women's, misses', children's and infants' underwear, nightwear, and negligees from woven fabrics; corsets and other body supporting garments from any material; other garments similar to the foregoing; and infants; and children's outerwear.</P> <P>(f) The jewelry manufacturing industry is defined as follows:</P> <P>(1)(i) The manufacturing, processing, or assembling, wholly or partially from any material, of jewelry, commonly or commercially so known. Jewelry as used herein includes without limitation, religious, school, college, and fraternal insignia; articles of ornament or adornment designed to be worn on apparel or carried on or about the person, including, without limitation, cigar and cigarette cases, holders, and lighters; watch cases; metal mesh bags and metal watch bracelets; and chain, mesh, and parts for use in the manufacture of any of the articles included in this definition. Jewelry as used in this part does not include pocket knives, cigar cutters, badges, emblems, military and naval insignia, belt buckles, and handbag and pocketbook frames and clasps, or commercial compacts and vanity cases, except when made from or embellished with precious metals or precious, semiprecious, synthetic or imitation stones, or the assaying, refining, and smelting of base or precious metals.</P> <P>(ii) The term <E T="03">parts</E> as used in paragraph (e)(1)(i) of this section does not include parts which are used predominantly for products other than jewelry, such as springs, blades, and nail files. The term <E T="03">commercial compacts and vanity cases</E> as used means compacts and vanity cases which bear the trade name or mark of a cosmetic manufacturer and are made for the purpose of distributing or advertising said cosmetics.</P> <P>(2) The manufacturing, cutting, polishing, encrusting, engraving, and setting of precious, semiprecious, synthetic, and imitation stones.</P> <P>(3) The manufacturing, drilling, and stringing of pearls, imitation pearls, and beads designed for use in the manufacture of jewelry.</P> <P>(4) The term <E T="03">hand-fashioned jewelry</E> as used in § 530.12(b) means articles of jewelry commonly known as genuine Navajo, Pueblo, Hopi, or Zuni handmade jewelry which in all elements of design, fashioning and ornamentation are handmade by methods and with the help of only such devices as permit the maker to determine the shape and design of each individual product: <E T="03">Provided,</E> That silver used in the making of such jewelry shall be of at least nine hundred fineness, and that turquoise and other stones used shall be genuine stones, uncolored and untreated by artificial means: <E T="03">And provided further,</E> That power machinery is permitted in the production of findings, in the cutting and polishing of stones, in the buffing and polishing of completed products, and in incidental functions. Equipment specifically prohibited shall include hand presses, foot presses, drop hammers, and similar equipment: <E T="03">And provided further,</E> That solder may be of less silver content than nine hundred; <PRTPAGE P="171"/> <E T="03">And provided further,</E> That findings may be mechanically made of any metal by Indians or others: <E T="03">And provided further,</E> That turquoise and other stones may be cut and polished by Indians or others without restrictions as to methods or equipment used.</P> <P>(g) The knitted outerwear industry is defined as follows: The knitting from any yarn or mixture of yarns and the further manufacturing, dyeing or other finishing of knitted garments, knitted garment sections, or knitted garment accessories for use as external apparel or covering which are partially or completely manufactured in the same establishment as that where the knitting process is performed; and the manufacture of bathing suits from any purchased fabric: <E T="03">Provided,</E> That the manufacturing, dyeing or other finishing of the following shall not be included:</P> <P>(1) Knitted fabric, as distinguished from garment sections or garments, for sale as such.</P> <P>(2) Fulled suitings, coatings, topcoatings, and overcoatings.</P> <P>(3) Garments or garment accessories made from purchased fabric, except bathing suits.</P> <P>(4) Gloves or mittens.</P> <P>(5) Hosiery.</P> <P>(6) Knitted garments or garment accessories for use as underwear, sleeping wear, or negligees.</P> <P>(7) Fleece-lined garments made from knitted fabric containing cotton only or containing any mixture of cotton and not more than 25 percent, by weight, of wool or animal fiber other than silk.</P> <P>(8) Knitted shirts of cotton or any synthetic fiber or any mixture of such fibers which have been knit on machinery of 10-cut or fine: <E T="03">Provided,</E> That this exception shall not be construed to exclude from the knitted outerwear industry and the manufacturing, dyeing, or other finishing of knitted shirts made in the same establishment as that where the knitting process is performed, if such shirts are made wholly or in part of fibers other than those specified in this clause, or if such shirts of any fiber are knit on machinery coarser than 10-cut.</P> <P>(h) The gloves and mittens industry is defined as follows: The production of gloves and mittens from any material or combination of materials, except athletic gloves and mittens.</P> <P>(i) The button and buckle manufacturing industry is defined as follows: The manufacture of buttons, buckles, and slides, and the manufacture of blanks and parts for such articles from any material except metal, for use on apparel.</P> <P>(j) The handkerchief manufacturing industry is defined as follows: The manufacture of men's, women's and children's handkerchiefs, plain or ornamented, from any materials.</P> <P>(k) The embroideries industry is defined as follows: The production of all kinds of hand and machine-made embroideries and ornamental stitchings, including but not by way of limitation, tucking shirring, smocking, hemstitching, hand rolling, fagoting, Bonnez embroidery, appliqueing, crochet beading, hand drawing, machine drawing, rhinestone trimming, sequin trimming, spangle trimming, eyelets, passementerie, pleating, the application of rhinestones and nailheads, stamping and perforating of designs, Schifli embroidery and laces, burnt-out laces and velvets, Swiss handmachine embroidery, thread splitting, embroidery thread cutting, scallop cutting, lace cutting, lace making-up, making-up of embroidered yard goods, straight cutting of embroidery and cutting out of embroidery, embroidery trimmings, bindings (not made in textile establishments), pipings and emblems: <E T="03">Provided,</E> That (1) the foregoing when produced or performed by a manufacturer of a garment, fabric or other article for use on such garment, fabric or other article, and (2) the manufacture of covered buttons and buckles, shall not be included.</P> <P>(l) As used throughout this part the terms “Secretary” or “Secretary of Labor” shall mean the Secretary of Labor, U.S. Department of Labor, or his or her designee.</P> <CITA>[24 FR 729, Feb. 3, 1959, as amended at 46 FR 50349, Oct. 9, 1981; 49 FR 22036, May 24, 1984; 53 FR 45722, Nov. 10, 1988; 61 FR 19986, May 3, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 530.2</SECTNO> <SUBJECT>Restriction of homework.</SUBJECT> <P>Except as provided in subpart B of this part, no work in the industries defined in paragraphs (e) through (k) of <PRTPAGE P="172"/>§ 530.1 shall be done in or about a home, apartment, tenement, or room in a residential establishment unless a special homework certificate issued and in effect pursuant to this part has been obtained for each homeworker or unless the homeworker is so engaged under the supervision of a Sheltered Workshop, as defined in § 525.2 of this chapter.</P> <CITA>[53 FR 45722, Nov. 10, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 530.3</SECTNO> <SUBJECT>Application forms for individual homeworker certificates.</SUBJECT> <P>Certificates authorizing the employment of industrial homeworkers in the industries defined in § 530.1 may be issued on the following terms and conditions upon application therefore on forms provided by the Wage and Hour Division. Such forms shall be signed by both the homeworker and the employer.</P> <APPRO>(Approved by the Office of Management and Budget under control number 1215-0005)</APPRO> <CITA>[24 FR 729, Feb. 3, 1959, as amended at 49 FR 18294, Apr. 30, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 530.4</SECTNO> <SUBJECT>Terms and conditions for the issuance of individual homeworker certificates.</SUBJECT> <P>(a) Upon application by the homeworker and the employer on forms provided by the Wage and Hour Division, certificates may be issued to the applicant employer authorizing the employment of a particular worker in industrial homework in a particular industry, provided that the application is in proper form and sets forth facts showing that the worker:</P> <P>(1)(i) Is unable to adjust to factory work because of age or physical or mental disability; or</P> <P>(ii) Is unable to leave home because the worker's presence is required to care for an invalid in the home; and</P> <P>(2)(i) Was engaged in industrial homework in the particular industry for which the certificate is applied, as such industry is defined in § 530.1, prior to: (<E T="03">a</E>) April 4, 1942, in the button and buckle manufacturing industry; (<E T="03">b</E>) November 2, 1942, in the embroideries industry; (<E T="03">c</E>) April 1, 1941, in the gloves and mittens industry; (<E T="03">d</E>) October 7, 1942, in the handkerchief manufacturing industry; (<E T="03">e</E>) July 1, 1941, in the jewelry manufacturing industry; or (<E T="03">f</E>) March 5, 1942, in the women's apparel industry, except that if this requirement shall result in unusual hardship to the individual homeworker it shall not be applied; or</P> <P>(ii) Is engaged in industrial homework under the supervision of a State Vocational Rehabilitation Agency.</P> <P>(b) No homeworker shall perform industrial homework for more than one employer in the same industry, but homework employment in one industry shall not be a bar to the issuance of certificates for other industries.</P> <APPRO>(Information collection requirements contained in paragraph (a) were approved by the Office of Management and Budget under control number 1215-0005)</APPRO> <CITA>[24 FR 729, Feb. 3, 1959, as amended at 43 FR 28470, June 30, 1978; 46 FR 50349, Oct. 9, 1981; 49 FR 44270, Nov. 5, 1984; 53 FR 45722, Nov. 10, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 530.5</SECTNO> <SUBJECT>Investigation.</SUBJECT> <P>An investigation may be ordered in any case to obtain additional data or facts. A medical examination of the worker or invalid may be ordered or a certification of facts concerning eligibility for the certificate by designated officers of the State or Federal Government may be required.</P> </SECTION> <SECTION> <SECTNO>§ 530.6</SECTNO> <SUBJECT>Termination of individual homeworker certificates.</SUBJECT> <P>(a) A certificate shall be valid under the terms set forth in the certificate for a period to be designated by the Administrator or his authorized representative. Application for renewal of any certificate shall be filed in the same manner as an original application under this part.</P> <P>(b) No effective certificate shall expire until action on an application for renewal shall have been finally determined, provided that such application has been properly executed in accordance with the requirements, and filed not less than 15 nor more than 30 days prior to the expiration date. A final determination means either the granting of or initial denial of the application for renewal of a certificate, or withdrawal of the application. A “properly executed” application is one which <PRTPAGE P="173"/>contains the complete information required on the form.</P> <CITA>[24 FR 729, Feb. 3, 1959, as amended at 27 FR 7020, July 25, 1962]</CITA> </SECTION> <SECTION> <SECTNO>§ 530.7</SECTNO> <SUBJECT>Revocation and cancellation of individual homeworker certificates.</SUBJECT> <P>Any certificate may be revoked for cause at any time. Violation of any provision of the Fair Labor Standards Act shall be sufficient grounds for revocation of all certificates issued to an employer, in which event no certificates shall be issued to the offending employer for a period of up to one year. Before any certificate is cancelled, however, interested parties shall be notified in writing of the facts warranting such cancellation and afforded an opportunity to demonstrate or achieve compliance. In appropriate circumstances, the Administrator shall afford an opportunity for a hearing to resolve the disputed matter.</P> <CITA>[49 FR 44271, Nov. 5, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 530.8</SECTNO> <SUBJECT>Preservation of individual homeworker certificates.</SUBJECT> <P>A copy of all certificates provided to the employer under this part shall be maintained for a period of at least three years after the last employment under the certificate.</P> <CITA>[49 FR 44271, Nov. 5, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 530.9</SECTNO> <SUBJECT>Records and reports.</SUBJECT> <P>The issuance of a certificate shall not relieve the employer of the duty of maintaining the records required in the regulations in part 516 of this chapter and failure to keep such records shall be sufficient cause for the cancellation of certificates issued to such an employer.</P> </SECTION> <SECTION> <SECTNO>§ 530.10</SECTNO> <SUBJECT>Delegation of authority to grant, deny, or cancel an individual homeworker certificate.</SUBJECT> <P>The Administrator may from time to time designate and appoint members of the Administrator's staff or State Agencies as his authorized representatives with full power and authority to grant, deny, or cancel homework certificates.</P> <CITA>[43 FR 28470, June 30, 1978]</CITA> </SECTION> <SECTION> <SECTNO>§ 530.11</SECTNO> <SUBJECT>Petition for review.</SUBJECT> <P>Any person aggrieved by the action of an authorized representative of the Administrator in granting or denying a certificate may, within 15 days thereafter or within such additional time as the Administrator for cause shown may allow, file with the Administrator a petition for review of the action of such representative praying for such relief as is desired. Such petition for review, if duly filed, will be acted upon by the Administrator or an authorized representative of the Administrator who took no part in the proceeding being reviewed. All interested parties will be afforded an opportunity to present their views in support of or in opposition to the matters prayed for in the petition.</P> </SECTION> <SECTION> <SECTNO>§ 530.12</SECTNO> <SUBJECT>Special provisions.</SUBJECT> <P>(a) <E T="03">Gloves and mittens industry.</E> Any certificate issued to an industrial homeworker by the New York State Department of Labor under paragraph II of Home Work Order No. 4 Restricting Industrial Homework in the Glove Industry, dated June 28, 1941, will be given effect by the Administrator as a certificate permitting the employment of the homeworker under the terms of § 530.4 for the period during which such certificate shall continue in force.</P> <P>(b) <E T="03">Jewelry manufacturing industry.</E> Nothing contained in the regulations in this part shall be construed to prohibit the employment, as homeworkers, of American Indians residing on the Navajo, Pueblo, and Hopi Indian Reservations, who are engaged in producing genuine hand-fashioned jewelry on the Indian reservations mentioned, provided the employment of such homeworker is in conformity with the following conditions:</P> <P>(1) That each employer of one or more Indian homeworkers engaged in making hand-fashioned jewelry on these Indian reservations shall submit in duplicate to the regional office of the Wage and Hour Division for the region in which the employer's place of business is located, on April 1, August 1, and December 1 of each year, the name and address of such employee engaged during the preceding 4-month period in making hand-fashioned jewelry on Indian reservations;<PRTPAGE P="174"/> </P> <P>(2) That each employer of one or more Indian homeworkers engaged in making hand-fashioned jewelry on these Indian reservations shall file copies of the piece rates in duplicate with the regional office of the Wage and Hour Division for the region in which the employer's place of business is located on April 1, August 1, and December 1 of each year, and</P> <P>(3) That each employer of one or more Indian homeworkers engaged in making hand-fashioned jewelry on these Indian reservations shall keep, maintain, and have available for inspection by the Administrator or the Administrator's authorized representative at any time, records and reports showing with respect to each of the homeworkers engaged in making hand-fashioned jewelry on these Indian reservations, the following information:</P> <P>(i) Name of the homeworker.</P> <P>(ii) Address of the homeworker.</P> <P>(iii) Date of birth of the homeworker, if under 19 years of age.</P> <P>(iv) Description of work performed.</P> <P>(v) Amount of cash wage payments made to the homeworker for each pay period.</P> <P>(vi) Date of such payment.</P> <P>(vii) Schedule of piece rates paid.</P> <FP>These records shall be kept by each employer for each of the employer's homeworkers engaged in making hand-fashioned jewelry on Indian reservations, as provided in this section, in lieu of the records required under §§ 516.2 and 516.31 of this chapter: <E T="03">Provided, however,</E> That nothing in this section shall relieve an employer from maintaining all other records required by part 516 of this chapter.</FP> <CITA>[24 FR 729, Feb. 3, 1959, as amended at 43 FR 28470, June 30, 1978]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Homeworker Employer Certificates</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>53 FR 45722, Nov. 10, 1988, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 530.101</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) Except as provided in subpart C, a certificate may be issued to an employer authorizing the employment of homeworkers in</P> <P>(1) The knitted outerwear, gloves and mittens, and embroideries industries as defined in paragraphs (g), (h), and (k), respectively, at § 530.1, effective January 9, 1989;</P> <P>(2) In the button and buckle and handkerchief manufacturing industries as defined in paragraphs (i) and (j), respectively, of § 530.1, effective July 9, 1989; and</P> <P>(3) In the jewelry industry as defined in paragraph (f) of § 530.1, effective July 9, 1989, but only where the employer's homeworkers are engaged exclusively in the stringing of beads and other jewelry and the carding and packaging of jewelry. The terms “carding and packaging of jewelry” include the attaching of jewelry to cards, boxing and wrapping, and the use of common household glues available to the general public, but do not include potentially hazardous operations such as the use of industrial glues, epoxies, soldering irons, or heating elements.</P> <P>(b) This certificate may be issued irrespective of whether individual homeworkers meet the conditions set forth in paragraph (a) of § 530.4 of Subpart A. Unless suspended or revoked, such certificates are valid for two-year periods. Applications for renewals must be submitted no later than thirty (30) days prior to the expiration date of the current certificate. Except as provided in subpart A, in the absence of a certificate, the employment of homeworkers in these industries is prohibited, and an employer violating this prohibition is subject to all the sanctions provided in the Fair Labor Standards Act and in this part, including an injunction restraining the employment of homeworkers.</P> <P>(c) Certificates authorizing such employment may be issued on the following terms and conditions upon written application to the Administrator, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210.</P> </SECTION> <SECTION> <SECTNO>§ 530.102</SECTNO> <SUBJECT>Requests for employer certificates.</SUBJECT> <P>The initial request for certification or renewal application shall be signed by the employer and shall contain the name of the firm, its mailing address, <PRTPAGE P="175"/>the physical location of the firm's principal place of business and a description of the business operations and items produced. In addition, the initial or renewal application shall contain the names, addresses, and languages (if other than English) spoken by the homeworkers that are currently employed (if any) or expected to be employed. The employer shall also provide the Administrator, within thirty (30) days, a notice of each change of address of the principal place of business. The notification shall be in writing and addressed to the Administrator, Wage and Hour Division, Employment Standards Administration, 200 Constitution Avenue, NW., Washington, DC 20210.</P> </SECTION> <SECTION> <SECTNO>§ 530.103</SECTNO> <SUBJECT>Employer assurances.</SUBJECT> <P>In order to be granted a certificate authorizing the employment of industrial homeworkers, the employer must provide written assurances concerning the employment of homeworkers subject to section 11(d) of the Fair Labor Standards Act to the effect that:</P> <P>(a) All homeworkers shall be paid in accordance with the monetary provisions of the Act.</P> <P>(b) All homeworkers shall be employed in compliance with the child labor provisions contained in section 12 of the Act and regulations and orders issued pursuant to section 12. All homeworkers will be instructed not to permit minors to work in violation of such provisions.</P> <P>(c) Records of hours worked and wages paid shall be maintained in accordance with section 11 of the Act and part 516 of this chapter.</P> <P>(d) All homeworkers shall complete homeworker handbooks in accordance with § 516.31 of part 516.</P> <P>(e) All homeworkers will be instructed to accurately record all hours worked, piece work information, and business-related expenses in the handbooks.</P> <P>(f) All records shall be made available for inspection and transcription by the Administrator or a duly authorized and designated representative, or transcription by the employer upon written request.</P> <P>(g) Piece rates paid to homeworkers shall be established using stop watch time studies or other work measurement methods.</P> <P>(h) All homeworkers shall be encouraged to cooperate with the Department in any investigation that may be made.</P> <P>(i) With respect to jewelry manufacturing, no operations other than the stringing of beads and other jewelry and the carding and packaging of jewelry will be performed by homeworkers.</P> </SECTION> <SECTION> <SECTNO>§ 530.104</SECTNO> <SUBJECT>Bonding or security payments.</SUBJECT> <P>(a) Where in the Administrator's judgment there is not sufficient reason to believe that the Act will be complied with or that money will be available if violations of the Act occur, the Administrator may condition issuance or renewal of a certificate to an employer upon the furnishing of a bond with a surety or sureties satisfactory to the Administrator.</P> <P>(b) The Administrator shall condition issuance or reinstatement of a certificate to any employer whose application for a certificate had previously been denied, or whose certificate had been revoked, upon the furnishing of a bond.</P> <P>(c) Any bond required by the Administrator under paragraph (a) or (b) of this section shall be in an amount determined by the Administrator, up to $2500 for each homeworker to be employed by such employer under the certificate. In lieu of a bond, the employer may furnish a cash payment of equal amount, to be held in a special deposit account by the Administrator for the period during which the certificate is in effect. Such bond, or cash payment, shall be subject to payment or forfeiture, in whole or in part, upon a final determination that the employer has failed to pay minimum wages or overtime compensation to homeworkers in accordance with the Act. Any sums thus paid or forfeited to the Administrator shall be disbursed to affected homeworkers in accordance with section 16(c) of the Act.</P> <P>(d) At the Administrator's discretion, the obligation of a bond may be relieved, and any cash payment held as <PRTPAGE P="176"/>security in lieu thereof may be refunded (together with any interest accrued thereon), upon a subsequent determination that the employer is in compliance with the Act and that sufficient funds will be available to meet back wage payment obligations in the event of violations of the Act.</P> </SECTION> <SECTION> <SECTNO>§ 530.105</SECTNO> <SUBJECT>Investigations.</SUBJECT> <P>Any employer in a restricted industry who requests certification to employ homeworkers will be investigated promptly after the issuance of the certificate by the Wage and Hour Division. Where such an employer is found to be in violation of the FLSA, and the violations are corrected and future compliance is promised, the firm will be reinvestigated to assure that full FLSA compliance has, in fact, been achieved.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Denial/Revocation of Homeworker Employer Certificates</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>53 FR 45723, Nov. 10, 1988, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 530.201</SECTNO> <SUBJECT>Conflict with State law.</SUBJECT> <P>No certificate will be issued pursuant to § 530.101 of subpart B above authorizing the employment of homeworkers in an industry in a State where the Governor (or authorized representative) has advised the Administrator of the Wage and Hour Division in writing that the employment of homeworkers in such industry, as defined in paragraphs (f) through (k) of § 530.1, is illegal by virtue of a State labor standards or health and safety law.</P> </SECTION> <SECTION> <SECTNO>§ 530.202</SECTNO> <SUBJECT>Piece rates—work measurement.</SUBJECT> <P>(a) No certificate will be issued pursuant to § 530.101 of subpart B to an employer who pays homeworkers based on piece rates unless the employer establishes the piece rates for the different types of items produced using stop watch time studies or other work measurement methods. Documentation of the work measurements used to establish the piece rates, and the circumstances under which such measurements were conducted shall be retained for three years and made available on request to the Wage and Hour Division.</P> <P>(b) The fact that an employer bases piece rates on work measurements which indicate that the homeworkers would receive at least the minimum wage at such piece rate(s) does not relieve the employer from the Act's requirement that <E T="03">each</E> homeworker actually receive not less than the minimum wage for all hours worked.</P> </SECTION> <SECTION> <SECTNO>§ 530.203</SECTNO> <SUBJECT>Outstanding violations and open investigations.</SUBJECT> <P>A homework certificate will not be issued or renewed by the Administrator if, within the previous three years, the Administrator has found and notified the applicant of a monetary violation of the Fair Labor Standards Act in an amount certain, or the Administrator has assessed a civil money penalty pursuant to subpart D of these regulations or part 579 of this chapter (child labor), and such amounts are unpaid, or if the applicant is the subject of a revocation proceeding at the time of the application for renewal, or the applicant is the subject of an open investigation.</P> </SECTION> <SECTION> <SECTNO>§ 530.204</SECTNO> <SUBJECT>Discretionary denial or revocation.</SUBJECT> <P>Where the Administrator finds that the employment of homeworkers under a certificate is likely to result in violations of the Fair Labor Standards Act, the regulations issued thereunder, or the assurances required by this part, the Administrator may deny or revoke the certificate.</P> </SECTION> <SECTION> <SECTNO>§ 530.205</SECTNO> <SUBJECT>Mandatory denial or revocation.</SUBJECT> <P>The Administrator shall deny or revoke a certificate in accordance with the following standards and for the period specified in the standards:</P> <P>(a) <E T="03">Serious wage violations.</E> Upon a finding by the Administrator of a serious wage violation, a certificate shall be denied (including refusal to renew) or revoked for one year. A serious wage violation is defined as minimum wage or overtime pay violations of the Act totalling $10,000 or more with respect to homeworkers; or minimum wage violations where 10 percent or more of a certificate holder's homeworkers (but in all cases at least two homeworkers) <PRTPAGE P="177"/>failed to receive at least 80 percent of the minimum wage for all hours worked for 6 or more weeks in any 3 month period; or minimum wage or overtime pay violations affecting more than half of the homeworkers of the certificate holder for 6 or more weeks in any 3 month period. All other wage violations are deemed non-serious wage violations for purposes of this section.</P> <P>(b) <E T="03">Repeated wage violations.</E> For repeated wage violations found by the Administrator, a certificate shall be denied or revoked for one to three years, depending on the seriousness and frequency of the violations.</P> <P>(c) <E T="03">Child labor violations.</E> Upon a finding by the Administrator of a violation of the child labor provisions of section 12 of the Fair Labor Standards Act and the regulations at part 570 of this title, a certificate shall be denied or revoked for one year. Upon a second finding by the Administrator of such a violation, the certificate shall be denied or revoked for three years.</P> <P>(d) <E T="03">Failure to pay back wages or civil money penalties judged owing.</E> Upon the failure of a certificate holder to pay within 60 days back wages or civil money penalties finally judged by a court, administrative law judge or other appropriate authority, as the case may be, to be owed by the certificate holder, or agreed to be paid by the certificate holder, or within such longer period as may be specified in the final order or agreement, a certificate shall be denied or revoked for up to one year or for such period as such obligation shall remain unpaid if longer than one year.</P> <P>(e) <E T="03">Failure to cooperate in an investigation.</E> Where the Administrator finds obstruction of or other failure to cooperate in a Wage and Hour investigation by a certificate holder which impedes the investigation, the certificate shall be denied or revoked for a period of one to three years, depending on the circumstances. For purposes of this regulation, cooperation includes providing records upon request to Wage and Hour compliance officers, identifying homeworkers of the certificate holder, and encouraging homeworkers to make themselves available in connection with an investigation.</P> <P>(f) <E T="03">Serious recordkeeping violations.</E> Upon a finding by the Administrator that a certificate holder has engaged in a serious recordkeeping violation, the certificate may be revoked for up to one year. Upon a second finding by the Administrator of a serious recordkeeping violation, a certificate shall be denied or revoked for one to three years. A serious recordkeeping violation is defined as one where, either through errors in or omissions of required information, the name and current address of homeworkers and the data which is necessary for the accurate determination of hours worked by or wages paid to homeworkers or data necessary for the computation of wages owed to homeworkers is unavailable with respect to 10 percent or more of the homeworkers.</P> <P>(g) <E T="03">Deliberate misstatement in an application for a certificate or in other documents.</E> Upon a finding by the Administrator of a deliberate misstatement of a material fact in an application for a certificate, in payroll records, or in any other information submitted to the Wage and Hour Division or maintained by the employer pursuant to these regulations, the certificate shall be denied or revoked for one to three years.</P> <P>(h) <E T="03">Discrimination against a homeworker.</E> Upon a finding by the Administrator that a certificate holder has discharged or otherwise discriminated against a homeworker with respect to the homeworker's compensation or terms, conditions, or privileges of employment because the homeworker engaged in protected activity, the certificate shall be denied or revoked for three years. Protected activity is defined as: (1) Any complaint of a violation of the Act to the employer, the Department or other appropriate authority, or (2) any action which furthers the enforcement of or compliance with the Act, such as giving information to a Wage and Hour compliance officer.</P> </SECTION> <SECTION> <SECTNO>§ 530.206</SECTNO> <SUBJECT>Special circumstances.</SUBJECT> <P>At the discretion of the Administrator, a certificate need not be denied or revoked pursuant to §§ 530.204 or 530.205 of this subpart if the Administrator finds all of the following:<PRTPAGE P="178"/> </P> <P>(a) The certificate holder, despite the exercise of due care, did not know and did not have reason to know of the violations;</P> <P>(b) All back wages and civil money penalties found by the Administrator to be owing by the certificate holder have been paid; and</P> <P>(c) The certificate holder has taken appropriate steps to prevent recurrence of the violations.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Civil Money Penalties</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>53 FR 45724, Nov. 10, 1988, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 530.301</SECTNO> <SUBJECT>General.</SUBJECT> <P>A system of civil money penalties is established to provide a remedy for any violation of the FLSA related to homework (except child labor violations, which are subject to civil money penalties pursuant to part 579 of this chapter), or for any violation of the homeworker regulations or employers' assurances pursuant to this part, which are not so serious as to warrant denial or revocation of a certificate. Accordingly, no civil money penalty will be assessed for conduct which serves as the basis of proposed denial or revocation of a certificate. (See subpart C of this part.) Civil money penalties will be assessed only against employers who are operating under a certificate or who are seeking certification.</P> </SECTION> <SECTION> <SECTNO>§ 530.302</SECTNO> <SUBJECT>Amounts of civil money penalties.</SUBJECT> <P>(a) A civil money penalty, not to exceed $500 per affected homeworker for any one violation, may be assessed for any violation of the Act or of this part or of the assu