agency or facility, of workers employed under special minimum wage certificates shall maintain and have available for inspection records indicating:

(a) Verification of the workers' disabilities;

(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);

(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));

(d) The production standards and supporting documentation for nondisabled workers for each job being performed by workers with disabilities employed under special certificates; and

(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.

(Approved by the Office of Management and Budget under control number 12150017)

§ 525.17 Revocation of certificates.

(a) A special minimum wage certificate may be revoked for cause at any time. A certificate may be revoked:

(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;

(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

(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.

(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.

§ 525.21 Lowering of wage rates.

(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.

(b) This provision applies to those workers with disabilities who were:

(1) Employed during the pay period which included June 1, 1986, even if no work was performed during that pay period; and

(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.

(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.

(d) In reviewing a request to lower a wage rate of a worker with a disability, documented evidence of the following will be considered:

(1) Any change in the worker's disabling condition which has a substantially negative impact on productive capacity;

(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;

(3) Any change in general economic conditions in the locality in which the work is performed which results in lower prevailing wage rates.

(e) A wage rate may not be lowered until authorization is obtained.

§ 525.22 Employee's right to petition.

(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 mini

mum wage rate. No particular form of petition is required, except that a petition must be signed by the individual, or the parent or guaradian 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.

(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.

(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 records required by § 525.16 (a), (b), (c) and (d). The Administrator shall be permitted to participate by counsel in the proceeding upon application.

(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.

(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.

(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.

(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.

(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.

§ 525.23 Work activities centers.

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.

§ 525.24 Advisory Committee on Special Minimum Wages.

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 such other functions as may be desired by the Administrator.

PART 526-INDUSTRIES OF A SEASONAL NATURE AND INDUSTRIES WITH MARKED SEASONAL PEAKS OF OPERATION

Sec.

526.1 Scope and application. 526.2 Issues.

526.3 Meaning of industry.

526.4 Policies.

526.5 Petitions and requests.

526.6 Initiating proceedings.

526.7 Notice of proceedings.

526.8 Procedures governing oral participa

tion.

526.9 Certification of record.

526.10 Industries of a seasonal nature. 526.11 Industries characterized by annual

ly recurring seasonal peaks of operation. 526.12 Seasonal industries engaged in certain operations on perishable agricultural or horticultural commodities. AUTHORITY: Sec. 1, 52 Stat. 1060, 29 U.S.C. 201, 207 as amended; General Order No. 45A of the Sec'y of Labor, 15 FR 3290; Reorganization Plan No. 6 of 1950, CFR 1949-53 Comp., p. 1004.

SOURCE: 32 FR 5775, Apr. 11, 1967, unless otherwise noted.

§ 526.1 Scope and application.

(a) The provisions of section 7 of the Fair Labor Standards Act of 1938, as amended, providing partial exemptions from its maximum hours provision for employees in industries found to be of a seasonal nature and for employees in some types of industries found to be characterized by marked annually recurring seasonal peaks of operation, are as follows:

(c) For a period or periods of not more than 10 workweeks in the aggregate in any calendar year, or 14 workweeks in the aggregate in the case of an employer who does not qualify for the exemption in subsection (d) of this section, any employer may employ any employee for a workweek in excess of that specified in subsection (a) [which prohibits employment for more than specified numbers of hours without specified overtime compensation without paying the compensation for overtime employment prescribed in such subsection if such employee (1) is employed by such employer in

an industry found by the Secretary to be of a seasonal nature, and (2) receives compensation for employment by such employer in excess of 10 hours in any workday, or for employment by such employer in excess of 50 hours in any workweek, as the case may be, at a rate not less than one and one-half times the regular rate at which he is employed.

(d) For a period or periods of not more than 10 workweeks in the aggregate in any calendar year, or 14 workweeks in the aggregate in the case of an employer who does not qualify for the exemption in subsection (c) of this section, any employer may employ any employee for a workweek in excess of that specified in subsection (a) [which prohibits employment for more than specified numbers of hours without specified overtime compensation without paying the compensation for overtime employment prescribed in such subsection, if such employee:

(1) Is employed by such employer in an enterprise which is in an industry found by the Secretary:

(A) To be characterized by marked annually recurring seasonal peaks of operation at the places of first marketing or first processing of agricultural or horticultural commodities, from farms if such industry is engaged in the handling, packing, preparing, storing, first processing, or canning of any perishable agricultural or horticultural commodities in their raw or natural state, or

(B) To be of a seasonal nature and engaged in the handling, packing, storing, preparing, first processing, or canning of any perishable agricultural or horticultural commodities in their raw or natural state, and

(2) Receives compensation for employment by such employer in excess of 10 hours in any workday, or for employment in excess of 48 hours in any workweek, as the case may be, at a rate not less than one and one-half times the regular rate at which he is employed.

(b) The authority to make the findings contemplated by section 7(c) and 7(d) of the Act has been delegated to the Administrator of the Wage and Hour Division (hereinafter called the Administrator). Each of these exemptions shall apply only to those industries which are the subject of currently effective findings.

(c) The regulations in this part 526 set forth the general policies which will be observed by the Administrator in making, modifying, and revoking the findings on which the exemptions provided in sections 7(c) and 7(d) of the Act depend, provide the proce

dures whereby the requisite findings are made, amended, and revoked, and publish the findings on which the exemptions provided in sections 7(c) and 7(d) of the Act depend provide the procedures whereby the requisite findings are made, amended, and revoked, and publish the list setting forth each industry for which there exists a currently effective finding resulting in an exemption of either or both types for

it.

§ 526.2 Issues.

The exemptions provided in the statutory provisions quoted in § 526.1(a) present three questions of fact which are relevant to the issue whether either or both exemptions has application to a particular industry. They are stated in paragraphs (a), (b), and (c) of this section.

(a) Is the industry of a seasonal nature?

(b) Is the industry engaged in the handling, packing, storing, preparing, first processing, or canning of perishable agricultural or horticultural commodities in their raw or natural state?

(c) If the industry is not of a seasonal nature, is it characterized by marked annually recurring seasonal peaks of operation at the places of first marketing operation at the places of first marketing or first processing of perishable agricultural or horticultural commodities from farms?

(d) A determination that an industry qualifies for the exemption in section 7(c) or 7(d) depends upon affirmative answers to the questions stated in paragraphs (a), (b), and (c) of this section. Affirmative answers to both the questions presented in paragraph (a) and paragraph (b) of this section will result in a determination that both exemptions apply, and listing the industry in § 526.12. Affirmative answer to the question presented in paragraph (a), with negative or no answer to the question presented in paragraph (b), will result in a determination that the exemption provided in section 7(c) of the Act has application, but the exemption provided in section 7(d) of the Act does not, and listing the industry in § 526.10. Affirmative answers to the questions presented by paragraphs (b) and (c), with negative or no answer to

the question presented in paragraph (a), will result in a determination that the exemption provided in section 7(d) of the Act, but not the one provided in section 7(c) of the Act, has application, and listing the industry in § 526.11.

§ 526.3 Meaning of industry.

(a) The term industry as used in this part means a trade, business, industry, or branch thereof, or group of industries in which individuals are gainfully employed.

(b) In determining whether the operations for which exemption is sought constitute an industry or a separable branch of an industry, the following factors, among others, may be considered: The extent to which the activity carried on and the products under consideration are distinguishable from other activities and products, the geographical locations of the operations, the comparability of techniques and physical facilities with those found in other situations, the extent of integration with other operations, the extent of separation of employees performing the operations involved, established classifications in the industry, and any competitive factors involved.

(c) Affirmative findings on questions presented in § 526.2(a), (b), and (c), whenever made by the Administrator as provided in this part, will define and delimit the scope of the industry to which they apply. No exemption under section 7(c) or 7(d) of the Act which is dependent on any such finding may be taken with respect to any employee in a workweek when he is employed in any enterprise, operation, or activity not included in the scope of such industry as thus defined and delimited.

§ 526.4 Policies.

(a) Industries of a seasonal nature. The Administrator will find an affirmative answer to the question presented in § 526.2(a) if the industry:

(1) Engages in handling, extracting, or processing materials during a season or seasons in a regularly, annually recurring part or parts of the year not substantially greater than 6