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(b) Industries found to be seasonal in nature, name and definition—(1) Field grown cut and potted flower industry. The original assembly of field grown cut and potted flowers from the growers, including the sorting, grading, handling, packing, and shipping, and transporting to carriers or to market, and any other operations necessary or incidental thereto.
(2) Fresh fruit and vegetable industry. Includes only the handling, packing, storing, preparing, first processing, and canning, of any fresh fruits and vegetables in their raw or natural state and any other operations and services necessary and incidental thereto. It includes such operations when performed in connection with fresh fruits and vegetables which have been merely refrigerated, but does not include operations performed in connection with fresh fruits and vegetables which have been frozen, preserved, canned, dehydrated, or otherwise changed so that they are no longer perishable or in their raw or natural state. The industry to which these findings apply may include transactions whereby, for purpose of filling a customer's order, fresh fruits and vegetables that have been packed or canned by employees of one employer are commingled with those packed or canned by the employees of the employer claiming these exemptions: Provided, That the amount of fill-in goods is 5 percent or less of the weekly volume of shipments made during each week in which the exemption is claimed.
(3) Hop drying industry. The receiving, picking, and drying of hops and any operations necessary or incidental to the foregoing including the curing, compressing, and baling of hops when performed at the hop drying establishment during the hop drying period.
(4) Mint oil distilling industry. The distilling of mint oil from mint hay, including any operations necessary or incidental thereto.
(5) Nursery stock storing and packing industry. The handling, packing, storing, and preparing of nursery stock, and any operations necessary or incidental thereto.
(6) Sugarcane processing and milling industries-(i) Sugarcane process
ing and milling industry in Florida. The activities comprising the industry are the following:
(a) The loading of sugarcane in the fields and its transportation to a sugarcane processing mill when performed by employees of the processor; the unloading of sugarcane at the mill; and the processing of sugarcane into raw sugar, syrup, and molasses;
(b) The following operations when performed on the premises of a sugarcane mill while the sugarcane is being processed: The immediate refining, as one of a connected series of operations, of raw sugar produced from sugarcane ground on the premises; the refining, by the introduction into such series of operations, of raw sugar which has been produced during the same grinding season in other Florida cane processing plants of the employer, except in establishments where the refined sugar made from such transferred raw sugar constitutes one-half or more of the refined sugar produced during the cane processing season, or where purchased raw sugar, or raw sugar produced outside of Florida is refined during the cane processing season; the burning, removing from the premises or dehydrating of bagasse resulting from the processing of sugarcane;
(c) The handling, baling, bagging, packing, and storing of the sugar, syrup, molasses, or bagasse;
(d) The repair of mechanical equipment used in loading and transporting sugarcane to the mill;
(e) Any operations necessary and incidental to those described in paragraphs (b)(6)(i) (a), (b), (c), and (d) of this section, including the placing of these products in storage or transportation facilities on or near the premises; and
Clerical, custodial, or other common activities in the harvesting and processing of sugarcane in Florida performed by employees of a processing establishment during the processing season as an incident to or in conjunction with the harvesting of the cane processed at such establishment in accordance with the customary practice of the enterprises of the sugarcane processing and milling industry in Florida.
(ii) Sugarcane processing and milling industry in Puerto Rico. In the Commonwealth of Puerto Rico, the transportation of sugarcane to a sugarcane processing mill when performed by employees of the processor; the unloading of sugarcane at the mill; the processing of sugarcane into raw sugar, syrup, and molasses; and the following operations when performed on the premises of a sugarcane mill while the sugarcane is being processed; the immediate refining, as one of a connected series of operations, of raw sugar produced from sugarcane ground on the premises; the refining, by the introduction into such series of operations, of raw sugar which has been produced during the same grinding season in other Puerto Rican can processing plants of the employer, except in establishments where the refined sugar made from such transferred raw sugar constitutes one-half or more of the refined sugar produced during the cane processing season, or where purchased raw sugar or raw sugar produced outside of Puerto Rico is refined during the cane season; the burning, removing from the premises, or dehydrating of bagasse resulting from the processing of sugarcane; the handling, baling, bagging, packing, and storing of the sugar, syrup, molasses, or bagasse; and any operations necessary and incident to the foregoing, including the placing of these products in storage or transportation facilities on or near the premises.
[34 FR 18548, Nov. 21, 1969, as amended at 35 FR 7727, May 20, 1970]
(a) Whenever the employment of student-workers as learners at wages lower than the minimum wage applicable under section 6 of the Fair Labor Standards Act of 1938, as amended, is believed necessary to prevent curtailment of opportunities for employment in a specified educational institution, an application for a special certificate authorizing the employment of such student-workers as learners at subminimum wage rates may be filed by an appropriate official of the educational institution with the Administrator of the Wage and Hour Division, United States Department of Labor, Washington, DC 20210. A copy of such application shall be filed simultaneously with the appropriate Regional Office of the Division.
(b) Application must be made on the official form furnished by the Division
and must contain all information required by such form, including among other things, the industries and occupations within each industry in which the student-workers are to be employed as learners, the number of student-workers requested, their proposed hourly rates and learning periods in number of hours, the number of full-time experienced workers in such occupations and their straight-time average hourly earnings during the past year, and a description of the products being manufactured in the school-operated industry. Any applicant may also submit such additional information as may be pertinent.
(c) Any application which fails to present the information required by the forms may be returned to the applicant with a notation of deficiencies and without prejudice against submission of a new or revised application.
§ 527.4 Procedure for action upon an application.
(a) Upon receipt of an application for the employment of student workers as learners, the Administrator or his authorized representative shall issue or deny a special certificate. To the extent he deems appropriate, the Administrator or his authorized representative may provide an opportunity to other interested persons to present data and views on the application prior to granting or denying a studentworker certificate.
(b) If a student-worker certificate is issued, it shall be mailed to the educational institution. If a student-worker certificate is denied, notice of such denial shall be sent to the educational institution and such denial shall be without prejudice to the filing of any subsequent application.
(c) If a student-worker certificate is issued, there shall be published in the FEDERAL REGISTER a statement of the terms of such certificate.
[20 FR 7737, Oct. 14, 1955, as amended at 24 FR 204, Jan. 8, 1959]
§ 527.5 Conditions governing issuance of a student-worker certificate.
The following conditions shall govern the issuance of a special certificate authorizing the employment of
student-workers as learners at subminimum wage rates:
(a) The employment of the studentworkers at subminimum wages authorized by the special certificate must be necessary to prevent curtailment of opportunities for employment in a specified educational institution;
(b) The student-workers must be at least 16 years of age or at least 18 years of age if employed in any occupation declared to be particularly hazardous by order of the Secretary of Labor pursuant to the Fair Labor Standards Act of 1938, as amended;
(c) The occupation for which the student-workers are receiving training must require a sufficient degree of skill to necessitate an appreciable learning period;
(d) The issuance of a student-worker certificate will not tend to create unfair competitive labor cost advantages nor have the effect of impairing or depressing wage or working standards established for experienced workers for work of a like or comparable character in the industry;
(e) There have been no serious outstanding violations of the provisions of a student-worker certificate previously issued to the educational institution, nor have there been any serious violations of the act which provide reasonable grounds to conclude that the terms of a student-worker certificate may not be complied with, if issued.
§ 527.6 Terms and conditions of employ
ment under student-worker certificates. (a) The student-worker certificate, if issued, shall specify, among other things: (1) The name and address of the educational institution employing the student-workers; (2) the particular industry and the occupations in which the student-workers are to be trained; (3) the number of student-workers authorized to be employed on any one day; (4) the subminimum wage rates permitted during the authorized learning period; (5) the learning period for each authorized learner occupation or group of occupations within each industry; and (6) the effective and expiration dates of the certificate.
(b) The subminimum wage rate shall be not less than 75 percent of the
wage rate applicable under section 6 of the Fair Labor Standards Act of 1938, as amended, or the progressive wage schedule shall average not less than 75 percent of such applicable minimum over the authorized learning period. (c) No student-worker certificate may be issued retroactively.
(d) A student-worker certificate may be issued for a period not to exceed the one school year, unless a longer period is found to be justified by extraordinary circumstances.
(e) No provision of a student-worker certificate shall excuse noncompliance higher standards applicable to student-workers employed as learners which may be established under any other Federal law, or any State law, or municipal ordinance.
§ 527.7 Employment records to be kept.
In addition to any other records required under the record keeping regulations part 516 of this chapter), the educational institution shall keep the following records specifically relating to student-workers employed as learners at subminimum wage rates.
(a) Each student-worker employed as a learner under a student-worker certificate shall be designated as such on the payroll records kept by the school, with each student-worker's occupation and rate of pay being shown.
(b) The records required in this section, including a copy of any special certificate issued, shall be kept and made available for inspection at all times for at least three years from the last effective date of the certificate.
§ 527.8 Amendment or replacement of a student-worker certificate.
The Administrator upon his own motion may amend the provisions of a student-worker certificate when it is necessary by reason of the amendment of the regulations in this part, or may withdraw a student-worker certificate and issue a replacement certificate when necessary to correct omissions or apparent defects in the original certificate.
§ 527.9 Amendment to the regulations in this part.
The Administrator may at any time upon his own motion or upon written
(b) Annulment shall mean withdrawal of a certificate with retroactive effect to the date of issuance.
(c) Authorized representative 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.
(d) Area director shall include any area director of the Wage and Hour Division.
(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))
[43 FR 28469, June 30, 1978]
8 528.3 Withdrawal and annulment of certificates.
(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.
(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.
(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 op
portunities for employment. If appropriate, a more limited replacement certificate may be issued by the authorized representative.
(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))
[43 FR 28469, June 30, 1978]
§ 528.4 According opportunity to demonstrate or achieve compliance.
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.
(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))
[43 FR 28469, June 30, 1978)
§ 528.5 Proceedings for withdrawal or annulment.
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