date of such notice within which the applicant or recipient may request of the Secretary that the matter be scheduled for hearing, or (2) advise the applicant or recipient that the matter in question has been set down for hearing at a stated place and time. The time and place so fixed shall be reasonable and shall be subject to change for cause. The complainant, if any, shall be advised of the time and place of the hearing. An applicant or recipient may waive a hearing and submit written information and argument for the record. The failure

of an applicant or recipient to request a hearing under this section or to appear at a hearing for which a date has been set shall be deemed to be a waiver of the right to a hearing under section 602 of the Act and § 31.9 (b) of this part and consent to the making of a decision on the basis of such information as is available.

(b) Time and place of hearing. Hearings shall be held at the offices of the Department in Washington, D.C., at a time fixed by the Secretary unless he determines that the convenience of the applicant or recipient or of the Department requires that another place be selected. Hearings shall be held before the Secretary or before a hearing examiner designated in accordance with section 11 of the Administrative Procedure Act.

(c) Right to counsel. In all proceedings under this section, the applicant or recipient, and the Department shall have the right to be represented by counsel.

(d) Procedures, evidence, and record. (1) The hearing, decision, and any administrative review thereof shall be conducted in conformity with sections 5-8 of the Administrative Procedure Act, and in accordance with such rules of procedure as are proper (and not inconsistent with this section) relating to the conduct of the hearing, giving of notices subsequent to those provided for in paragraph (a), taking of testimony, exhibits, arguments and briefs, requests for findings, and other related matters. Both the Department and the applicant or recipient shall be entitled to introduce all relevant evidence on the issues as stated in the notice for hearing or as determined by the officer conducting the hearing at the outset of or during the hearing.

(2) Technical rules of evidence shall not apply to hearings conducted pursuant to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by crossexamination shall be applied where reasonably necessary by the officer conducting the hearing. The hearing officer may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record. All decisions shall be based upon the hearing record and written findings shall be made.

(e) Consolidated or Joint hearings. In cases in which the same or related facts are asserted to constitute noncompliance with this part with respect to two or more programs to which this part applies or noncompliance with this part and the regulations of one or more other Federal departments or agencies issued under Title VI of the Act, the Secretary may, by agreement with such other departments or agencies, where applicable, provide for the conduct of consolidated or joint hearings, and for the application to such hearings of rules of procedure not inconsistent with this part. Final decisions in such cases, insofar as this part is concerned, shall be made in accordance with § 31.11. § 31.11 Decisions and notices.

(a) Decision by a hearing examiner. If the hearing is held by a hearing examiner such hearing examiner shall either make an initial decision, if so authorized, or certify the entire record including his recommended findings and proposed decision to the Secretary for a final decision, and a copy of such initial decision or certification shall be mailed to the applicant or recipient and the complainant. Where the initial decision is made by the hearing examiner the applicant or recipient may within 30 days of the mailing of such notice of initial decision file with the Secretary his exceptions to the initial decision, with his reasons therefor. In the absence of exceptions, the Secretary may on his own motion within 45 days after the initial

decision serve on the applicant or recipient a notice that he will review the decision. Upon the filing of such exceptions or of such notice of review the Secretary shall review the initial decision and issue his own decision thereon including the reasons therefor. The decision of the Secretary shall be mailed promptly to the applicant or recipient and the complainant, if any. In the absence of either exceptions or a notice of review the initial decision shall constitute the final decision of the Secretary.

(b) Decisions on record or review by the Secretary. Whenever a record is certified to the Secretary for decision or he reviews the decision of a hearing examiner pursuant to paragraph (a), or whenever the Secretary conducts the hearing, the applicant or recipient shall be given reasonable opportunity to file with him briefs or other written statements of its contentions, and a copy of the final decision of the Secretary shall be given in writing to the applicant or recipient and the complainant, if any.

(c) Decisions on record where a hearing is waived. Whenever a hearing is waived pursuant to § 31.10 (a) a decision shall be made by the Secretary on the record and a copy of such decision shall be given in writing to the applicant or recipient, and to the complainant, if any.

(d) Rulings required. Each decision of a hearing officer or the Secretary shall set forth his ruling on each finding, conclusion, or exception presented, and shall identify the requirement or requirements imposed by or pursuant to this part with which it is found that the applicant or recipient has failed to comply.

(e) Content of orders. The final decision may provide for suspension or termination of, or refusal to grant or continue Federal financial assistance, in whole or in part, under the program involved, and may contain such terms, conditions, and other provisions as are consistent with and will effectuate the purposes of the Act and this part, including provisions designed to assure that no Federal financial assistance will thereafter be extended under such program to the applicant or recipient determined by such decision to be in default in its performance of an assurance given by it pursuant to this part, or to have otherwise failed to comply with this part, unless and until it corrects its noncompliance and satisfies the Secretary that it will fully comply with this part.

(a) Effect on other regulations. All regulations, orders or like directions heretofore issued by any officer of the Department which impose requirements designed to prohibit any discrimination against individuals on the ground of race, color, or national origin under any program to which this part applies, and which authorize the suspension or termination of or refusal to grant or to continue Federal financial assistance to any applicant for or recipient of such assistance under such program for failure to comply with such requirements, are hereby superseded to the extent that such discrimination is prohibited by this part, except that nothing in this part shall be deemed to relieve any person of any obligation assumed or imposed under any such superseded regulation, order, instruction, or like direction prior to the effective date of this part. Nothing in this part, however, shall be deemed to supersede any of the following (including future amendments thereof): (1) Executive Orders 10925 and 11114, and regulations issued thereunder, (2) The "Standards for a Merit System of Personnel Administration," issued jointly by the Secretaries of Defense, of Health, Education, and Welfare, and of Labor, 28 F.R. 734, or (3) any other regulation or instruction insofar as it prohibits discrimination on the grounds of race, color, or national origin in any program or situation to which this part is inapplicable, or proother hibits discrimination any ground.

on

(b) Supervision and coordination. The Secretary may from time to time assign to officials of other departments or agencies of the government (with the consent of such department or agency) responsibilities in connection with the effectuation of the purposes of Title VI of the Act and this part (other than responsibility for final decision as provided in § 31.11), including the achievement of effective coordination and maximum uniformity within the Department and within the Executive branch of the Government in the application of Title

40.28

40.29

Compliance with other Federal and
State statutes.

Amendment to the regulations in this
part.

AUTHORITY: The provisions of this Part 40 issued under sec. 14, 78 Stat. 924.

SOURCE: The provisions of this Part 40 appear at 29 F.R. 18156, Dec. 22, 1964, unless otherwise noted.

§ 40.1 Purpose and scope.

The Farm Labor Contractor Registration Act of 1963 requires certain persons to obtain Certificates of Registration prior to performing any activities which constitute engagement in farm labor contracting within the meaning of the Act. This part sets forth the Regulations of the Secretary of Labor, United States Department of Labor, which are

promulgated pursuant to section 14 of the Act to provide the procedure for applying for Certificates of Registration and allied documents, the issuance, renewal, suspension, or revocation thereof and rules of practice for administrative hearings relating thereto.

§ 40.2 Definitions.

For the purposes of this part:

(a) The term "person" includes any individual, partnership, association, joint stock company, trust, or corporation.

(b) The term "farm labor contractor" means any person, who, for a fee, either for himself or on behalf of another person, recruits, solicits, hires, furnishes, or transports ten or more migrant workers (excluding members of his immediate family) at any one time in any calendar year for interstate agricultural employment. The term "farm labor contractor" does not include (1) any nonprofit charitable organization, public or nonprofit private educational institution, or similar organization; (2) any farmer, processor, canner, ginner, packing shed operator, or nurseryman who engages in any such activity for the purpose of supplying migrant workers solely for his own operation; (3) any full-time or regular employe of any entity referred to in subparagraph (1) or (2) of this paragraph; or (4) any person who engages in any such activity for the purpose of obtaining migrant workers of any foreign nation for employment in the United States, if the employment of such workers is subject to (i) an agreement between the United States and such foreign nation, or (ii) an arrangement with the government of any foreign nation under which written contracts for the employment of such workers are provided for and the enforcement thereof is provided for in the United States by an instrumentality of such foreign nation.

(c) The term "fee" includes any money or other valuable consideration paid or promised to be paid to a person for services as a farm labor contractor.

(d) The term "interstate agricultural employment" means employment in any service or activity included within the provisions of section 3(f) of the Fair Labor Standards Act of 1938, as amended (29 USC 203 (f)), or section 3121(g) of the Internal Revenue Code of 1954 (26 USC 3121(g)), when such service or activity is performed by an individual worker who has been transported from

one State to another or from any place outside of a State to any place within a State.

(e) The term "migrant worker” means an individual whose primary employment is in agriculture, as defined in section 3 (f) of the Fair Labor Standards Act of 1938, as amended (29 USC 203 (f)), or who performs agricultural labor, as defined in section 3121(g) of the Internal Revenue Code of 1954 (26 USC 3121(g)), on a seasonal or other temporary basis.

(f) The term "immediate family" includes only (1) a spouse; (2) children, step-children, and foster children; and (3) parents, step-parents, and foster parents.

(g) The "Regional Administrator" is the administrative officer in charge of a regional office of the Bureau of Employment Security, United States Department of Labor.

(h) The term "Secretary" means the Secretary of Labor, United States Department of Labor.

(i) The "Administrator" means the Manpower Administrator of the United States Department of Labor or his authorized representative.

(j) The "Examiner" is an examiner appointed pursuant to § 11 of the Administrative Procedure Act and is the officer who presides at hearings conducted pursuant to §§ 40.17-40.26.

(k) The term "State" means any of the States of the United States, the District of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, and Guam.

(1) "Convicted" means that a final judgment of guilt has been rendered by a court of competent jurisdiction from which no opportunity for appeal remains.

(m) A "full-time or regular employee" is a person who performs farm labor contracting activities solely on behalf of one employer and is not an independent contractor.

(n) A "Certificate of Registration" is the certificate issued by the Secretary which permits a person to engage in activities as a farm labor contractor.

(o) A "Farm Labor Contractor Identification Card" is a card issued pursuant to this part permitting a full-time or regular employee of a person holding a valid Certificate of Registration to engage in activities as a farm labor contractor.

§ 40.3 Certificate of Registration required.

On and after January 1, 1965, the effective date of the Farm Labor Contractor Registration Act of 1963, any person who desires to engage in activities as a farm labor contractor must first obtain a Certificate of Registration. A full-time or regular employee of a person holding a valid Certificate of Registration may engage in activities as a farm labor contractor solely on behalf of his employer without obtaining a Certificate of Registration providing he first obtains and has in his possession while engaging in such activities a Farm Labor Contractor Identification Card.

§ 40.4

Application for Certificate of Registration.

(a) Any person desiring to obtain or renew a Certificate of Registration shall execute and file ES-410 Application for Certificate of Registration which is available at the local offices of the Employment Services of the various States. The application must be executed and filed in triplicate at any office of the Employment Services of the various States, except that in States requiring licensing or registration of farm labor contractors under State law such application shall be available and shall be filed at the Employment Service office of such State or the same office where the State registration or license is filed, whichever may be designated by the Governor of such State.

(b) The application shall set forth the information required thereon, shall be subscribed and sworn to by the applicant, set forth information concerning the applicant's conduct and his method of operation as a farm labor contractor, and have attached:

(1) The fingerprints of the applicant on a completed form FD-258.

(2) One of the following:

(i) Photostat or other copies of an insurance policy or policies for the period of the Certificate of Registration for which application is made, from an insurance carrier licensed or otherwise authorized to do business in the State in which the insurance is obtained, which insures the applicant against liability for damages to persons or property arising out of the applicant's ownership or operation of or his causing to be operated any vehicle for the transportation of migrant workers in connection with his business, activities, or opera

The

tions as a farm labor contractor. policy or policies shall provide insurance in an amount not less than that required by any law or regulation of any State in which the applicant operates a vehicle in connection with his business, activities, or operations as a farm labor contractor; but in no event shall the amount of such insurance be less than $5,000 for bodily injuries to or death of one person; $20,000 for bodily injuries to or death of all persons injured or killed in any one accident; $5,000 for the loss or damage in any one accident to property of others; or

(ii) A letter of intention addressed to an insurance carrier licensed or otherwise authorized to do business in one of the several States, and countersigned or endorsed by such insurance carrier indicating that insurance coverage as provided in subdivision (i) of this subparagraph will be in effect prior to the use, or operation, of any vehicle by or at the instance of the applicant in the course of his business, activities, or operations as a farm labor contractor; or

(iii) Proof of financial responsibility evidenced by a liability bond executed by the applicant, identified in the instrument as the "principal," together with a third party, identified in the instrument as the "surety," to assure payment of any liability, up to $50,000, for damages to persons or property arising out of the applicant's ownership of, operation of, or his causing to be operated any vehicle for the transportation of migrant workers in connection with his business, activities, or operations as a farm labor contractor. Every bond furnished in connection with activities as a farm labor contractor shall be supported by a corporate surety which appears on the list contained in Treasury Department Circular 570, with an underwriting limit of not less than $50,000 or which has been approved by the Secretary under the Welfare and Pension Plans Disclosure Act, as amended. Treasury Department Circular 570 may be obtained from the United States Treasury Department, Bureau of Accounts, Division of Deposits and Investments, Surety Bonds Branch, Washington, D.C., 20226.

(3) Evidence satisfactory to the Regional Administrator that the applicant has complied and does comply with rules and regulations promulgated by the Interstate Commerce Commission that are applicable to his activities and operations in interstate commerce.

(c) If a Certificate of Registration is lost or destroyed, a duplicate Certificate of Registration may be obtained by submission to the office at which application was originally made of an affidavit explaining the loss or destruction together with a letter requesting that a duplicate be issued.

§ 40.5 Corporations, partnerships, associations and other organizations.

Any corporation, partnership, association or other organization which is a farm labor contractor must obtain a farm labor contractor Certificate of Registration. Any officer, director, partner or member engaging in activities as a farm labor contractor on behalf of the corporation, partnership, association other organization is for the purposes of this part, a full-time or regular employee of a farm labor contractor.

or

§ 40.6 Farm Labor Contractor Identification Cards, applications.

(a) Full-time or regular employees of a holder of a valid Certificate of Registration who desire to obtain a Farm Labor Contractor Identification Card shall execute ES-412, Application for Farm Labor Contractor Identification Card, which is available at the local offices of the Employment Services of the various States or any office designated by the Governor of a State pursuant to § 40.4. The application must be executed and filed in quadruplicate at any such office. Each application shall set forth as required thereon information concerning the applicant's conduct and a description of his activities as a farm labor contractor. The application shall be sworn to and subscribed by the applicant and contain a certification by the holder of the valid Certificate of Registration that the applicant is his full-time or regular employee. The application shall have attached the fingerprints of the applicant on a completed form FD-258, which is available at any local office of the Employment Services of the various States or any office designated by the Governor of a State pursuant to § 40.4.

(b) Applications for Farm Labor Contractor Identification Cards shall be acknowledged by the Regional Administrator. Such acknowledgement shall authorize the applicant to engage in the activities of a farm labor contractor as a full-time or regular employee of the holder of the valid Certificate of Registration until a determination is made upon the application.