cfr_sections
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83 rows where part_number = 785 sorted by section_id
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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 15:15:3.1.1.2.23.0.1.1 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.1 Scope and definitions. | BIS | (a) Scope. This part 785 describes the sanctions that apply to violations of the Act and the APR. It also establishes detailed administrative procedures for certain violations of the Act. Violations for which the statutory basis is the Act are set forth in § 785.2 of the APR. BIS investigates these violations, prepares charges, provides legal representation to the U.S. Government, negotiates settlements, and initiates and resolves proceedings. The administrative procedures applicable to these violations are described in §§ 785.3 through 785.19 of the APR. (b) Definitions. The following are definitions of terms as used only in part 785 of the APR. For definitions of terms applicable to parts 781 through 786 of the APR, unless otherwise noted in this paragraph or elsewhere in the APR, see part 781 of the APR. The Act. The U.S. Additional Protocol Implementation Act of 2006 (Public Law 109-401, 120 Stat. 2726 (December 18, 2006)). Assistant Secretary for Export Enforcement. The Assistant Secretary for Export Enforcement, Bureau of Industry and Security, United States Department of Commerce. Final decision. A decision or order assessing a civil penalty, or otherwise disposing of or dismissing a case, which is not subject to further administrative review, but which may be subject to collection proceedings or judicial review in an appropriate Federal court as authorized by law. Office of Chief Counsel. The Office of Chief Counsel for Industry and Security, United States Department of Commerce. Recommended decision. A decision of the administrative law judge in proceedings involving violations of part 785 that is subject to review by the Secretary of Commerce, or a designated United States Government official. Report. For the purposes of part 785 of the APR, the term “report” means any report required under parts 783 through 786 of the APR. Respondent. Any person named as the subject of a letter of intent to charge, a Notice of Violation and Assessment (NOVA), or order. Under Secretary, Bureau of Ind… | ||||||
| 15:15:3.1.1.2.23.0.1.10 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.10 Matters protected against disclosure. | BIS | (a) Protective measures. The ALJ may limit discovery or introduction of evidence or issue such protective or other orders as in the ALJ's judgment may be needed to prevent undue disclosure of classified or sensitive documents or information. Where the ALJ determines that documents containing classified or sensitive matter must be made available to a party in order to avoid prejudice, the ALJ may direct the other party to prepare an unclassified and nonsensitive summary or extract of the documents. The ALJ may compare the extract or summary with the original to ensure that it is supported by the source document and that it omits only so much as must remain undisclosed. The summary or extract may be admitted as evidence in the record. (b) Arrangements for access. If the ALJ determines that the summary procedure outlined in paragraph (a) of this section is unsatisfactory, and that classified or otherwise sensitive matter must form part of the record in order to avoid prejudice to a party, the ALJ may provide the parties with the opportunity to make arrangements that permit a party or a representative to have access to such matter without compromising sensitive information. Such arrangements may include obtaining security clearances or giving counsel for a party access to sensitive information and documents subject to assurances against further disclosure, including a protective order, if necessary. | ||||||
| 15:15:3.1.1.2.23.0.1.11 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.11 Prehearing conference. | BIS | (a) On the ALJ's own motion, or on request of a party, the ALJ may direct the parties to participate in a prehearing conference, either in person or by telephone, to consider: (1) Simplification of issues; (2) The necessity or desirability of amendments to pleadings; (3) Obtaining stipulations of fact and of documents to avoid unnecessary proof; or (4) Such other matters as may expedite the disposition of the proceedings. (b) The ALJ may order the conference proceedings to be recorded electronically or taken by a reporter, transcribed and filed with the ALJ. (c) If a prehearing conference is impracticable, the ALJ may direct the parties to correspond with the ALJ to achieve the purposes of such a conference. (d) The ALJ will prepare a summary of any actions agreed on or taken pursuant to this section. The summary will include any written stipulations or agreements made by the parties. | ||||||
| 15:15:3.1.1.2.23.0.1.12 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.12 Hearings. | BIS | (a) Scheduling. Upon receipt of a valid request for a hearing, the ALJ shall, by agreement with all the parties or upon notice to all parties of at least 30 calendar days from the date of receipt of a request for a hearing, schedule a hearing. All hearings will be held in Washington, DC, unless the ALJ determines, for good cause shown, that another location would better serve the interest of justice. (b) Hearing procedure. Hearings will be conducted in a fair and impartial manner by the ALJ. All hearings will be closed, unless the ALJ for good cause shown determines otherwise. The rules of evidence prevailing in courts of law do not apply, and all evidentiary material deemed by the ALJ to be relevant and material to the proceeding and not unduly repetitious will be received and given appropriate weight, except that any evidence of settlement which would be excluded under Rule 408 of the Federal Rules of Evidence is not admissible. Witnesses will testify under oath or affirmation, and shall be subject to cross-examination. (c) Testimony and record. (1) A verbatim record of the hearing and of any other oral proceedings will be taken by reporter or by electronic recording, and filed with the ALJ. If any party wishes to obtain a written copy of the transcript, that party shall pay the costs of transcription. The parties may share the costs if both want a transcript. (2) Upon such terms as the ALJ deems just, the ALJ may direct that the testimony of any person be taken by deposition and may admit an affidavit or report as evidence, provided that any affidavits or reports have been filed and served on the parties sufficiently in advance of the hearing to permit a party to file and serve an objection thereto on the grounds that it is necessary that the affiant or declarant testify at the hearing and be subject to cross-examination. (d) Failure to appear. If a party fails to appear in person or by counsel at a scheduled hearing, the hearing may nevertheless proceed. The party's failure to appear will not affe… | ||||||
| 15:15:3.1.1.2.23.0.1.13 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.13 Procedural stipulations. | BIS | Unless otherwise ordered and subject to § 785.14 of the APR, a written stipulation agreed to by all parties and filed with the ALJ will modify the procedures established by this part. | ||||||
| 15:15:3.1.1.2.23.0.1.14 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.14 Extension of time. | BIS | The parties may extend any applicable time limitation by stipulation filed with the ALJ before the time limitation expires, or the ALJ may, on the ALJ's own initiative or upon application by any party, either before or after the expiration of any applicable time limitation, extend the time, except that the requirement that a hearing be demanded within 15 calendar days, and the requirement that a final agency decision be made within 60 calendar days, may not be modified. | ||||||
| 15:15:3.1.1.2.23.0.1.15 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.15 Post-hearing submissions. | BIS | All parties shall have the opportunity to file post-hearing submissions that may include findings of fact and conclusions of law, supporting evidence and legal arguments, exceptions to the ALJ's rulings or to the admissibility of evidence, and orders and settlements. | ||||||
| 15:15:3.1.1.2.23.0.1.16 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.16 Decisions. | BIS | (a) Recommended decision and order. After considering the entire record in the case, the ALJ will issue a recommended decision based on a preponderance of the evidence. The decision will include findings of fact, conclusions of law, and a decision based thereon as to whether the respondent has violated the Act. If the ALJ finds that the evidence of record is insufficient to sustain a finding that a violation has occurred with respect to one or more allegations, the ALJ shall order dismissal of the allegation(s) in whole or in part, as appropriate. If the ALJ finds that one or more violations have been committed, the ALJ shall issue an order imposing administrative sanctions. (b) Factors considered in assessing penalties. In determining the amount of a civil penalty, the ALJ shall take into account the nature, circumstances, extent and gravity of the violation(s), and, with respect to the respondent, the respondent's ability to pay the penalty, the effect of a civil penalty on the respondent's ability to continue to do business, the respondent's history of prior violations, and such other matters as justice may require. (c) Referral of recommended decision and order. The ALJ shall immediately issue and serve the recommended decision (and order, if appropriate) to the Office of Chief Counsel, at the address in § 785.6(b) of the APR, and to the respondent, by courier delivery or overnight mail. The recommended decision and order will also be referred to the head of the designated executive agency for final decision and order. (d) Final decision and order. The recommended decision and order shall become the final agency decision and order unless, within 60 calendar days, the Secretary of Commerce, or a designated United States Government official, modifies or vacates it, or unless an appeal has been filed pursuant to paragraph (e) of this section. (e) Appeals. The respondent may appeal the final agency decision within 30 calendar days after the date of certification. Petitions for appeal may be filed in… | ||||||
| 15:15:3.1.1.2.23.0.1.17 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.17 Settlement. | BIS | (a) Settlements before issuance of a NOVA. When the parties have agreed to a settlement of the case prior to issuance of a NOVA, a settlement proposal consisting of a settlement agreement and order will be submitted to the Assistant Secretary for Export Enforcement for approval and signature. If the Assistant Secretary does not approve the proposal, he/she will notify the parties and the case will proceed as though no settlement proposal has been made. If the Assistant Secretary approves the proposal, he/she will issue an appropriate order, and no action will be required by the ALJ. (b) Settlements following issuance of a NOVA. The parties may enter into settlement negotiations at any time during the time a case is pending before the ALJ. If necessary, the parties may extend applicable time limitations or otherwise request that the ALJ stay the proceedings while settlement negotiations continue. When the parties have agreed to a settlement of the case, the Office of Chief Counsel will recommend the settlement to the Assistant Secretary for Export Enforcement, forwarding a proposed settlement agreement and order, which the Assistant Secretary will approve and sign. If a NOVA has been filed, the Office of Chief Counsel will send a copy of the settlement proposal to the ALJ. (c) Settlement scope. Any respondent who agrees to an order imposing any administrative sanction does so solely for the purpose of resolving the claims in the administrative enforcement proceeding brought under this Part. The government officials involved have neither the authority nor the responsibility for initiating, conducting, settling, or otherwise disposing of criminal proceedings. That authority and responsibility are vested in the Attorney General and the Department of Justice. (d) Finality. Cases that are settled may not be reopened or appealed, absent a showing of good cause. Appeals and requests to reopen settled cases must be submitted to the Assistant Secretary for Export Enforcement within 30 calendar days of the execut… | ||||||
| 15:15:3.1.1.2.23.0.1.18 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.18 Record for decision. | BIS | (a) The record. The transcript of hearings, exhibits, rulings, orders, all papers and requests filed in the proceedings, and, for purposes of any appeal under § 785.16 of the APR, the decision of the ALJ and such submissions as are provided for under § 785.16 of the APR will constitute the record and the exclusive basis for decision. When a case is settled, the record will consist of any and all of the foregoing, as well as the NOVA or draft NOVA, settlement agreement, and order. (b) Restricted access. On the ALJ's own motion, or on the motion of any party, the ALJ may direct that there be a restricted access portion of the record for any material in the record to which public access is restricted by law or by the terms of a protective order entered in the proceedings. A party seeking to restrict access to any portion of the record is responsible, prior to the close of the proceeding, for submitting a version of the document(s) proposed for public availability that reflects the requested deletion. The restricted access portion of the record will be placed in a separate file and the file will be clearly marked to avoid improper disclosure and to identify it as a portion of the official record in the proceedings. The ALJ may act at any time to permit material that becomes declassified or unrestricted through passage of time to be transferred to the unrestricted access portion of the record. (c) Availability of documents —(1) Scope. All NOVAs and draft NOVAs, answers, settlement agreements, decisions and orders disposing of a case will be displayed on the BIS Freedom of Information Act (FOIA) Web site, at http://www.bis.doc.gov/foia, which is maintained by the Office of Administration, Bureau of Industry and Security, U.S. Department of Commerce. The Office of Administration does not maintain a separate inspection facility. The complete record for decision, as defined in paragraphs (a) and (b) of this section will be made available on request. (2) Timing. The record for decision will be available only … | ||||||
| 15:15:3.1.1.2.23.0.1.19 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.19 Payment of final assessment. | BIS | (a) Time for payment. Full payment of the civil penalty must be made within 30 days of the effective date of the order or within such longer period of time as may be specified in the order. Payment shall be made in the manner specified in the NOVA. (b) Enforcement of order. The government party may, through the Attorney General, file suit in an appropriate district court if necessary to enforce compliance with a final order issued under the APR. This suit will include a claim for interest at current prevailing rates from the date of expiration of the 60-day period referred to in § 785.16(d), or the date of the final order, as appropriate. (c) Offsets. The amount of any civil penalty imposed by a final order may be deducted from any sum(s) owed by the United States to a respondent. | ||||||
| 15:15:3.1.1.2.23.0.1.2 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.2 Violations of the Act subject to administrative and criminal enforcement proceedings. | BIS | (a) Violations —(1) Refusal to permit entry or access. No person may willfully fail or refuse to permit entry or access, or willfully disrupt, delay or otherwise impede complementary access, or an entry in connection with complementary access, authorized by the Act. (2) Failure to establish or maintain records. No person may willfully fail or refuse to do any of the following: (i) Establish or maintain any record required by the Act or the APR; (ii) Submit any report, notice, or other information to the United States Government in accordance with the Act or the APR; or (iii) Permit access to or copying of any record by the United States Government that is related to a person's obligations under the Act or the APR. (b) Civil penalties —(1) Civil penalty for refusal to permit entry or access. Any person that is determined to have willfully failed or refused to permit entry or access, or to have willfully disrupted, delayed or otherwise impeded an authorized complementary access, as set forth in paragraph (a)(1) of this section, shall pay a civil penalty in an amount not to exceed $25,000 for each violation. Each day the violation continues constitutes a separate violation. (2) Civil penalty for failure to establish or maintain records. Any person that is determined to have willfully failed or refused to establish or maintain any record, submit any report or other information required by the Act or the APR, or permit access to or copying of any record related to a person's obligations under the Act or the APR, as set forth in paragraph (a)(2) of this section, shall pay a civil penalty in an amount not to exceed $25,000 for each violation. (c) Criminal penalty. Any person that is determined to have violated the Act by willfully failing or refusing to permit entry or access authorized by the Act; by willfully disrupting, delaying or otherwise impeding complementary access authorized by the Act; or by willfully failing or refusing to establish or maintain any required record, submit any required repo… | ||||||
| 15:15:3.1.1.2.23.0.1.20 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.20 Reporting a violation. | BIS | If a person learns that a violation of the Additional Protocol, the Act, or the APR has occurred or may occur, that person may notify: Office of Export Enforcement, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Room H-4520, Washington, DC 20230; Tel: (202) 482-1208; Facsimile: (202) 482-0964. | ||||||
| 15:15:3.1.1.2.23.0.1.3 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.3 Initiation of administrative proceedings. | BIS | (a) Issuance of a Notice of Violation and Assessment (NOVA). Prior to the initiation of an administrative proceeding through issuance of a NOVA, the Bureau of Industry and Security will issue a letter of intent to charge. The letter of intent to charge will advise a respondent that BIS has conducted an investigation. The letter will give the respondent a specified period of time to contact BIS to discuss settlement of the allegations set forth in the letter of intent to charge. If the respondent does not contact BIS in the time period specified in the letter of intent to charge, the Director of the Office of Export Enforcement, or such other Department of Commerce representative designated by the Assistant Secretary for Export Enforcement, may initiate an administrative enforcement proceeding under this § 785.3 by issuing a NOVA. (b) Content of a NOVA. The NOVA shall constitute a formal complaint and will set forth the alleged violation(s) and the essential facts with respect to the alleged violation(s), reference the relevant statutory, regulatory or other provisions, and state the maximum amount of the civil penalty that could be assessed. The NOVA also will inform the respondent of the requirement to request a hearing pursuant to § 785.4 of the APR. (c) Service of a NOVA. Service of the NOVA shall be made by certified mail or courier delivery with signed acknowledgment of receipt. The date of signed acknowledgment of receipt shall be the effective date of service of the NOVA. One copy of each paper shall be provided to each party in the delivery. BIS files the NOVA with the Administrative Law Judge (ALJ) at the same time that it is sent to the respondent. The ALJ, in turn, will place the case on its docket and will notify both the respondent and BIS of the docket information. | ||||||
| 15:15:3.1.1.2.23.0.1.4 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.4 Request for hearing and answer. | BIS | (a) Deadline for answering the NOVA. If the respondent wishes to contest the NOVA issued by BIS, the respondent must submit a written request for a hearing to BIS within 15 business days from the date of service of the NOVA. If the respondent requests a hearing, the respondent must answer the NOVA within 30 calendar days from the date of the request for hearing. The request for a hearing and the respondent's answer to the NOVA must be filed with the Administrative Law Judge (ALJ), along with a copy of the NOVA, and served on the Office of Chief Counsel, and any other address(es) specified in the NOVA, in accordance with § 785.6 of the APR. (b) Content of respondent's answer. The respondent's answer must be responsive to the NOVA and must fully set forth the nature of the respondent's defense(s). The answer must specifically admit or deny each separate allegation in the NOVA; if the respondent is without knowledge, the answer will so state and this will serve as a denial. Failure to deny or controvert a particular allegation will be deemed to be an admission of that allegation. The answer must also set forth any additional or new matter that the respondent contends will support a defense or claim of mitigation. Any defense or partial defense not specifically set forth in the answer shall be deemed to be waived, and evidence supporting that defense or partial defense may be refused, except for good cause shown. (c) English required. The request for hearing, the answer to the NOVA, and all other papers and documentary evidence must be submitted in English. (d) Waiver. The failure of the respondent to file a request for a hearing and an answer within the times prescribed in paragraph (a) of this section constitutes a waiver of the respondent's right to appear and contest the allegations set forth in the NOVA. If no hearing is requested and no answer is provided, a final order will be signed by the Secretary of Commerce, or by a designated United States Government official, and will constitute final agency … | ||||||
| 15:15:3.1.1.2.23.0.1.5 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.5 Representation. | BIS | An individual respondent may appear, in person, or be represented by a duly authorized officer or employee. A partner may appear on behalf of a partnership, or a duly authorized officer or employee of a corporation may appear on behalf of the corporation. If a respondent is represented by counsel, counsel shall be a member in good standing of the bar of any State, Commonwealth or Territory of the United States, or of the District of Columbia, or be licensed to practice law in the country in which counsel resides, if not the United States. The U.S. Government will be represented by the Office of Chief Counsel. A respondent personally, or through counsel or other representative who has the power of attorney to represent the respondent, shall file a notice of appearance with the ALJ, or, in cases where settlement negotiations occur before any filing with the ALJ, with the Office of Chief Counsel. | ||||||
| 15:15:3.1.1.2.23.0.1.6 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.6 Filing and service of papers other than the Notice of Violation and Assessment (NOVA). | BIS | (a) Filing. All papers to be filed with the ALJ shall be addressed to “Additional Protocol Administrative Enforcement Proceedings,” at the address set forth in the NOVA, or such other place as the ALJ may designate. Filing by United States certified mail, by express or equivalent parcel delivery service, via facsimile, or by hand delivery is acceptable. Filing from a foreign country shall be by airmail, via facsimile, or by express or equivalent parcel delivery service. A copy of each paper filed shall be simultaneously served on all parties. (b) Service. Service shall be made by United States certified mail, by express or equivalent parcel delivery service, via facsimile, or by hand delivery of one copy of each paper to each party in the proceeding. Service on the government party in all proceedings shall be addressed to Office of Chief Counsel for Industry and Security, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Room H-3839, Washington, DC 20230, or sent via facsimile to (202) 482-0085. Service on a respondent shall be to the address to which the NOVA was sent, or to such other address as the respondent may provide. When a party has appeared by counsel or other representative, service on counsel or other representative shall constitute service on that party. (c) Date. The date of filing or service is the day when the papers are deposited in the mail or are delivered in person, by delivery service, or by facsimile. Refusal by the person to be served, or by the person's agent or attorney, of service of a document or other paper will be considered effective service of the document or other paper as of the date of such refusal. (d) Certificate of service. A certificate of service signed by the party making service, stating the date and manner of service, shall accompany every paper, other than the NOVA, filed and served on the parties. (e) Computation of time. In computing any period of time prescribed or allowed by this part, the day of the act, event, or default from whic… | ||||||
| 15:15:3.1.1.2.23.0.1.7 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.7 Summary decision. | BIS | The ALJ may render a summary decision disposing of all or part of a proceeding on the motion of any party to the proceeding, provided that there is no genuine issue as to any material fact and the party is entitled to summary decision as a matter of law. | ||||||
| 15:15:3.1.1.2.23.0.1.8 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.8 Discovery. | BIS | (a) General. The parties are encouraged to engage in voluntary discovery regarding any matter, not privileged, which is relevant to the subject matter of the pending proceeding. The provisions of the Federal Rules of Civil Procedure relating to discovery apply to the extent consistent with this part and except as otherwise provided by the ALJ or by waiver or agreement of the parties. The ALJ may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. These orders may include limitations on the scope, method, time and place of discovery, and provisions for protecting the confidentiality of classified or otherwise sensitive information, including Confidential Business Information (CBI) as defined by the Act. (b) Interrogatories and requests for admission or production of documents. A party may serve on any party interrogatories, requests for admission, or requests for production of documents for inspection and copying, and a party may apply to the ALJ for such enforcement or protective order as that party deems warranted with respect to such discovery. The service of a discovery request shall be made at least 30 calendar days before the scheduled date of the hearing unless the ALJ specifies a shorter time period. Copies of interrogatories, requests for admission and requests for production of documents and responses thereto shall be served on all parties and a copy of the certificate of service shall be filed with the ALJ at least 5 business days before the scheduled date of the hearing. Matters of fact or law of which admission is requested shall be deemed admitted unless, within a period designated in the request (at least 10 business days after service, or within such additional time as the ALJ may allow), the party to whom the request is directed serves upon the requesting party a sworn statement either denying specifically the matters of which admission is requested or setting forth in detail the reasons why the party to who… | ||||||
| 15:15:3.1.1.2.23.0.1.9 | 15 | Commerce and Foreign Trade | VII | D | 785 | PART 785—ENFORCEMENT | § 785.9 Subpoenas. | BIS | (a) Issuance. Upon the application of any party, supported by a satisfactory showing that there is substantial reason to believe that the evidence would not otherwise be available, the ALJ may issue subpoenas to any person requiring the attendance and testimony of witnesses and the production of such books, records or other documentary or physical evidence for the purpose of the hearing, as the ALJ deems relevant and material to the proceedings, and reasonable in scope. Witnesses shall be paid the same fees and mileage that are paid to witnesses in the courts of the United States. In case of contempt, challenge or refusal to obey a subpoena served upon any person pursuant to this paragraph, any district court of the United States, in which venue is proper, has jurisdiction to issue an order requiring any such person to comply with a subpoena. Any failure to obey an order of the court is punishable by the court as a contempt thereof. (b) Service. Subpoenas issued by the ALJ may be served by any of the methods set forth in § 785.6(b) of the APR. (c) Timing. Applications for subpoenas must be submitted at least 10 business days before the scheduled hearing or deposition, unless the ALJ determines, for good cause shown, that extraordinary circumstances warrant a shorter time. | ||||||
| 29:29:3.1.1.2.45.1.444.1 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | A | Subpart A—General Considerations | § 785.1 Introductory statement. | DOL-WHD | [35 FR 15289, Oct. 1, 1970] | Section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206) requires that each employee, not specifically exempted, who is engaged in commerce, or in the production of goods for commerce, or who is employed in an enterprise engaged in commerce, or in the production of goods for commerce receive a specified minimum wage. Section 7 of the Act (29 U.S.C. 207) provides that persons may not be employed for more than a stated number of hours a week without receiving at least one and one-half times their regular rate of pay for the overtime hours. The amount of money an employee should receive cannot be determined without knowing the number of hours worked. This part discusses the principles involved in determining what constitutes working time. It also seeks to apply these principles to situations that frequently arise. It cannot include every possible situation. No inference should be drawn from the fact that a subject or an illustration is omitted. If doubt arises inquiries should be sent to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210, or to any area or Regional Office of the Division. | |||
| 29:29:3.1.1.2.45.1.444.2 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | A | Subpart A—General Considerations | § 785.2 Decisions on interpretations; use of interpretations. | DOL-WHD | The ultimate decisions on interpretations of the act are made by the courts. The Administrator must determine in the first instance the positions he will take in the enforcement of the Act. The regulations in this part seek to inform the public of such positions. It should thus provide a “practical guide for employers and employees as to how the office representing the public interest in its enforcement will seek to apply it.” ( Skidmore v. Swift, 323 U.S. 134, 138 (1944).) | ||||
| 29:29:3.1.1.2.45.1.444.3 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | A | Subpart A—General Considerations | § 785.3 Period of effectiveness of interpretations. | DOL-WHD | These interpretations will remain in effect until they are rescinded, modified or withdrawn. This will be done when and if the Administrator concludes upon reexamination, or in the light of judicial decision, that a particular interpretation, ruling or enforcement policy is incorrect or unwarranted. All other rulings, interpretations or enforcement policies inconsistent with any portion of this part are superseded by it. The Portal-to-Portal Bulletin (part 790 of this chapter) is still in effect except insofar as it may not be consistent with any portion hereof. The applicable statutory provisions are set forth in § 785.50. | ||||
| 29:29:3.1.1.2.45.1.444.4 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | A | Subpart A—General Considerations | § 785.4 Application to Walsh-Healey Public Contracts Act. | DOL-WHD | [35 FR 15289, Oct. 1, 1970] | The principles set forth in this part are also followed by the Administrator of the Wage and Hour Division in determining hours worked by employees performing work subject to the provisions of the Walsh-Healey Public Contracts Act. | |||
| 29:29:3.1.1.2.45.2.444.1 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | B | Subpart B—Principles for Determination of Hours Worked | § 785.5 General requirements of sections 6 and 7 of the Fair Labor Standards Act. | DOL-WHD | [26 FR 7732, Aug. 18, 1961] | Section 6 requires the payment of a minimum wage by an employer to his employees who are subject to the Act. Section 7 prohibits their employment for more than a specified number of hours per week without proper overtime compensation. | |||
| 29:29:3.1.1.2.45.2.444.2 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | B | Subpart B—Principles for Determination of Hours Worked | § 785.6 Definition of “employ” and partial definition of “hours worked”. | DOL-WHD | By statutory definition the term “employ” includes (section 3(g)) “to suffer or permit to work.” The act, however, contains no definition of “work”. Section 3(o) of the Fair Labor Standards Act contains a partial definition of “hours worked” in the form of a limited exception for clothes-changing and wash-up time. | ||||
| 29:29:3.1.1.2.45.2.444.3 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | B | Subpart B—Principles for Determination of Hours Worked | § 785.7 Judicial construction. | DOL-WHD | [26 FR 190, Jan. 11, 1961, as amended at 76 FR 18859, Apr. 5, 2011] | The United States Supreme Court originally stated that employees subject to the act must be paid for all time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” ( Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U. S. 590 (1944)) Subsequently, the Court ruled that there need be no exertion at all and that all hours are hours worked which the employee is required to give his employer, that “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer's property may be treated by the parties as a benefit to the employer.” ( Armour & Co. v. Wantock, 323 U.S. 126 (1944); Skidmore v. Swift, 323 U.S. 134 (1944)) The workweek ordinarily includes “all the time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed work place”. ( Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)) The Portal-to-Portal Act did not change the rule except to provide an exception for preliminary and postliminary activities. See § 785.34. | |||
| 29:29:3.1.1.2.45.2.444.4 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | B | Subpart B—Principles for Determination of Hours Worked | § 785.8 Effect of custom, contract, or agreement. | DOL-WHD | [35 FR 15289, Oct. 1, 1970] | The principles are applicable, even though there may be a custom, contract, or agreement not to pay for the time so spent with special statutory exceptions discussed in §§ 785.9 and 785.26. | |||
| 29:29:3.1.1.2.45.2.444.5 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | B | Subpart B—Principles for Determination of Hours Worked | § 785.9 Statutory exemptions. | DOL-WHD | [26 FR 190, Jan. 11, 1961, as amended at 30 FR 9912, Aug. 10, 1965; 76 FR 18859, Apr. 5, 2011] | (a) The Portal-to-Portal Act. The Portal-to-Portal Act (secs. 1-13, 61 Stat. 84-89, 29 U.S.C. 251-262) eliminates from working time certain travel and walking time and other similar “preliminary” and “postliminary” activities performed “prior” or “subsequent” to the “workday” that are not made compensable by contract, custom, or practice. It should be noted that “preliminary” activities do not include “principal” activities. See §§ 790.6 to 790.8 of this chapter. The use of an employer's vehicle for travel by an employee and activities that are incidental to the use of such vehicle for commuting are not considered “principal” activities when meeting the following conditions: The use of the employer's vehicle for travel is within the normal commuting area for the employer's business or establishment and the use of the employer's vehicle is subject to an agreement on the part of the employer and the employee or the representative of such employee. Section 4 of the Portal-to-Portal Act does not affect the computation of hours worked within the “workday”. “Workday” in general, means the period between “the time on any particular workday at which such employee commences (his) principal activity or activities” and “the time on any particular workday at which he ceases such principal activity or activities.” The “workday” may thus be longer than the employee's scheduled shift, hours, tour of duty, or time on the production line. Also, its duration may vary from day to day depending upon when the employee commences or ceases his “principal” activities. With respect to time spent in any “preliminary” or “postliminary” activity compensable by contract, custom, or practice, the Portal-to-Portal Act requires that such time must also be counted for purposes of the Fair Labor Standards Act. There are, however, limitations on this requirement. The “preliminary” or “postliminary” activity in question must be engaged in during the portion of the day with respect to which it is made compensable by the contract, custom, or practi… | |||
| 29:29:3.1.1.2.45.3.444.1 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.10 Scope of subpart. | DOL-WHD | This subpart applies the principles to the problems which arise frequently. | ||||
| 29:29:3.1.1.2.45.3.444.2 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.11 General. | DOL-WHD | Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time. ( Handler v. Thrasher, 191, F. 2d 120 (C.A. 10, 1951); Republican Publishing Co. v. American Newspaper Guild, 172 F. 2d 943 (C.A. 1, 1949; Kappler v. Republic Pictures Corp., 59 F. Supp. 112 (S.D. Iowa 1945), aff'd 151 F. 2d 543 (C.A. 8, 1945); 327 U.S. 757 (1946); Hogue v. National Automotive Parts Ass'n. 87 F. Supp. 816 (E.D. Mich. 1949); Barker v. Georgia Power & Light Co., 2 W.H. Cases 486; 5 CCH Labor Cases, para. 61,095 (M.D. Ga. 1942); Steger v. Beard & Stone Electric Co., Inc., 1 W.H. Cases 593; 4 Labor Cases 60,643 (N.D. Texas, 1941)) | ||||
| 29:29:3.1.1.2.45.3.444.3 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.12 Work performed away from the premises or job site. | DOL-WHD | The rule is also applicable to work performed away from the premises or the job site, or even at home. If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked. | ||||
| 29:29:3.1.1.2.45.3.444.4 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.13 Duty of management. | DOL-WHD | In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so. | ||||
| 29:29:3.1.1.2.45.3.445.5 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.14 General. | DOL-WHD | Whether waiting time is time worked under the Act depends upon particular circumstances. The determination involves “scrutiny and construction of the agreements between particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the circumstances. Facts may show that the employee was engaged to wait or they may show that he waited to be engaged.” ( Skidmore v. Swift, 323 U.S. 134 (1944)) Such questions “must be determined in accordance with common sense and the general concept of work or employment.” ( Central Mo. Tel. Co. v. Conwell, 170 F. 2d 641 (C.A. 8, 1948)) | ||||
| 29:29:3.1.1.2.45.3.445.6 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.15 On duty. | DOL-WHD | A stenographer who reads a book while waiting for dictation, a messenger who works a crossword puzzle while awaiting assignments, fireman who plays checkers while waiting for alarms and a factory worker who talks to his fellow employees while waiting for machinery to be repaired are all working during their periods of inactivity. The rule also applies to employees who work away from the plant. For example, a repair man is working while he waits for his employer's customer to get the premises in readiness. The time is worktime even though the employee is allowed to leave the premises or the job site during such periods of inactivity. The periods during which these occur are unpredictable. They are usually of short duration. In either event the employee is unable to use the time effectively for his own purposes. It belongs to and is controlled by the employer. In all of these cases waiting is an integral part of the job. The employee is engaged to wait. (See: Skidmore v. Swift, 323 U.S. 134, 137 (1944); Wright v. Carrigg, 275 F. 2d 448, 14 W.H. Cases (C.A. 4, 1960); Mitchell v. Wigger, 39 Labor Cases, para. 66,278, 14 W.H. Cases 534 (D.N.M. 1960); Mitchell v. Nicholson, 179 F. Supp, 292,14 W.H. Cases 487 (W.D.N.C. 1959)) | ||||
| 29:29:3.1.1.2.45.3.445.7 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.16 Off duty. | DOL-WHD | (a) General. Periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked. He is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived. Whether the time is long enough to enable him to use the time effectively for his own purposes depends upon all of the facts and circumstances of the case. (b) Truck drivers; specific examples. A truck driver who has to wait at or near the job site for goods to be loaded is working during the loading period. If the driver reaches his destination and while awaiting the return trip is required to take care of his employer's property, he is also working while waiting. In both cases the employee is engaged to wait. Waiting is an integral part of the job. On the other hand, for example, if the truck driver is sent from Washingtion, DC to New York City, leaving at 6 a.m. and arriving at 12 noon, and is completely and specifically relieved from all duty until 6 p.m. when he again goes on duty for the return trip the idle time is not working time. He is waiting to be engaged. ( Skidmore v. Swift, 323 U.S. 134, 137 (1944); Walling v. Dunbar Transfer & Storage, 3 W.H. Cases 284; 7 Labor Cases para. 61,565 (W.D. Tenn. 1943); Gifford v. Chapman, 6 W.H. Cases 806; 12 Labor Cases para. 63,661 (W.D. Okla., 1947); Thompson v. Daugherty, 40 Supp. 279 (D. Md. 1941)) | ||||
| 29:29:3.1.1.2.45.3.445.8 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.17 On-call time. | DOL-WHD | An employee who is required to remain on call on the employer's premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on call”. An employee who is not required to remain on the employer's premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call. ( Armour & Co. v. Wantock, 323 U.S. 126 (1944); Handler v. Thrasher, 191 F. 2d 120 (C.A. 10, 1951); Walling v. Bank of Waynesboro, Georgia, 61 F. Supp. 384 (S.D. Ga. 1945)) | ||||
| 29:29:3.1.1.2.45.3.446.10 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.19 Meal. | DOL-WHD | (a) Bona fide meal periods. Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating. ( Culkin v. Glenn L. Martin, Nebraska Co., 97 F. Supp. 661 (D. Neb. 1951), aff'd 197 F. 2d 981 (C.A. 8, 1952), cert. denied 344 U.S. 888 (1952); Thompson v. Stock & Sons, Inc., 93 F. Supp. 213 (E.D. Mich 1950), aff'd 194 F. 2d 493 (C.A. 6, 1952); Biggs v. Joshua Hendy Corp., 183 F. 2d 515 (C. A. 9, 1950), 187 F. 2d 447 (C.A. 9, 1951); Walling v. Dunbar Transfer & Storage Co., 3 W.H. Cases 284; 7 Labor Cases para. 61.565 (W.D. Tenn. 1943); Lofton v. Seneca Coal and Coke Co., 2 W.H. Cases 669; 6 Labor Cases para. 61,271 (N.D. Okla. 1942); aff'd 136 F. 2d 359 (C.A. 10, 1943); cert. denied 320 U.S. 772 (1943); Mitchell v. Tampa Cigar Co., 36 Labor Cases para. 65, 198, 14 W.H. Cases 38 (S.D. Fla. 1959); Douglass v. Hurwitz Co., 145 F. Supp. 29, 13 W.H. Cases (E.D. Pa. 1956)) (b) Where no permission to leave premises. It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period. | ||||
| 29:29:3.1.1.2.45.3.446.9 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.18 Rest. | DOL-WHD | Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time. ( Mitchell v. Greinetz, 235 F. 2d 621, 13 W.H. Cases 3 (C.A. 10, 1956); Ballard v. Consolidated Steel Corp., Ltd., 61 F. Supp. 996 (S.D. Cal. 1945)) | ||||
| 29:29:3.1.1.2.45.3.447.11 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.20 General. | DOL-WHD | Under certain conditions an employee is considered to be working even though some of his time is spent in sleeping or in certain other activities. | ||||
| 29:29:3.1.1.2.45.3.447.12 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.21 Less than 24-hour duty. | DOL-WHD | An employee who is required to be on duty for less than 24 hours is working even though he is permitted to sleep or engage in other personal activities when not busy. A telephone operator, for example, who is required to be on duty for specified hours is working even though she is permitted to sleep when not busy answering calls. It makes no difference that she is furnished facilities for sleeping. Her time is given to her employer. She is required to be on duty and the time is worktime. ( Central Mo. Telephone Co. v. Conwell, 170 F. 2d 641 (C.A. 8, 1948); Strand v. Garden Valley Telephone Co., 51 F. Supp. 898 (D. Minn. 1943); Whitsitt v. Enid Ice & Fuel Co., 2 W. H. Cases 584; 6 Labor Cases para. 61,226 (W.D. Okla. 1942).) | ||||
| 29:29:3.1.1.2.45.3.447.13 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.22 Duty of 24 hours or more. | DOL-WHD | (a) General. Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. If sleeping period is of more than 8 hours, only 8 hours will be credited. Where no expressed or implied agreement to the contrary is present, the 8 hours of sleeping time and lunch periods constitute hours worked. ( Armour v. Wantock, 323 U.S. 126 (1944); Skidmore v. Swift, 323 U.S. 134 (1944); General Electric Co. v. Porter, 208 F. 2d 805 (C.A. 9, 1953), cert. denied, 347 U.S. 951, 975 (1954); Bowers v. Remington Rand, 64 F. Supp. 620 (S.D. Ill, 1946), aff'd 159 F. 2d 114 (C.A. 7, 1946) cert. denied 330 U.S. 843 (1947); Bell v. Porter, 159 F. 2d 117 (C.A. 7, 1946) cert. denied 330 U.S. 813 (1947); Bridgeman v. Ford, Bacon & Davis, 161 F. 2d 962 (C.A. 8, 1947); Rokey v. Day & Zimmerman, 157 F. 2d 736 (C.A. 8, 1946); McLaughlin v. Todd & Brown, Inc., 7 W.H. Cases 1014; 15 Labor Cases para. 64,606 (N.D. Ind. 1948); Campbell v. Jones & Laughlin, 70 F. Supp. 996 (W.D. Pa. 1947).) (b) Interruptions of sleep. If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night's sleep, the entire period must be counted. For enforcement purposes, the Divisons have adopted the rule that if the employee cannot get at least 5 hours' sleep during the scheduled period the entire time is working time. (See Eustice v. Federal Cartridge Corp., 66 F. Supp. 55 (D. Minn. 1946).) | ||||
| 29:29:3.1.1.2.45.3.447.14 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.23 Employees residing on employer's premises or working at home. | DOL-WHD | An employee who resides on his employer's premises on a permanent basis or for extended periods of time is not considered as working all the time he is on the premises. Ordinarily, he may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he may leave the premises for purposes of his own. It is, of course, difficult to determine the exact hours worked under these circumstances and any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted. This rule would apply, for example, to the pumper of a stripper well who resides on the premises of his employer and also to a telephone operator who has the switchboard in her own home. ( Skelly Oil Co. v. Jackson, 194 Okla. 183, 148 P. 2d 182 (Okla. Sup. Ct. 1944; Thompson v. Loring Oil Co., 50 F. Supp. 213 (W.D. La. 1943).) | ||||
| 29:29:3.1.1.2.45.3.448.15 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.24 Principles noted in Portal-to-Portal Bulletin. | DOL-WHD | In November, 1947, the Administrator issued the Portal-to-Portal Bulletin (part 790 of this chapter). In dealing with this subject, § 790.8 (b) and (c) of this chapter said: (b) The term “principal activities” includes all activities which are an integral part of a principal activity. Two examples of what is meant by an integral part of a principal activity are found in the report of the Judiciary Committee of the Senate on the Portal-to-Portal bill. They are the following: (1) In connection with the operation of a lathe, an employee will frequently, at the commencement of his workday, oil, grease, or clean his machine, or install a new cutting tool. Such activities are an integral part of the principal activity, and are included within such term. (2) In the case of a garment worker in a textile mill, who is required to report 30 minutes before other employees report to commence their principal activities, and who during such 30 minutes distributes clothing or parts of clothing at the workbenches of other employees and gets machines in readiness for operation by other employees, such activities are among the principal activities of such employee. Such preparatory activities, which the Administrator has always regarded as work and as compensable under the Fair Labor Standards Act, remain so under the Portal Act, regardless of contrary custom or contract. (c) Among the activities included as an integral part of a principal activity are those closely related activities which are indispensable to its performance. If an employee in a chemical plant, for example, cannot perform his principal activities without putting on certain clothes, changing clothes on the employer's premises at the beginning and end of the workday would be an integral part of the employee's principal activity. On the other hand, if changing clothes is merely a convenience to the employee and not directly related to his principal activities, it would be considered as a “preliminary” or “postliminary” activity rather than a principal p… | ||||
| 29:29:3.1.1.2.45.3.448.16 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.25 Illustrative U.S. Supreme Court decisions. | DOL-WHD | These principles have guided the Administrator in the enforcement of the Act. Two cases decided by the U.S. Supreme Court further illustrate the types of activities which are considered an integral part of the employees' jobs. In one, employees changed their clothes and took showers in a battery plant where the manufacturing process involved the extensive use of caustic and toxic materials. ( Steiner v. Mitchell, 350 U.S. 247 (1956).) In another case, knifemen in a meatpacking plant sharpened their knives before and after their scheduled workday ( Mitchell v. King Packing Co., 350 U.S. 260 (1956)). In both cases the Supreme Court held that these activities are an integral and indispensable part of the employees' principal activities. | ||||
| 29:29:3.1.1.2.45.3.448.17 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.26 Section 3(o) of the Fair Labor Standards Act. | DOL-WHD | [30 FR 9912, Aug. 10, 1965] | Section 3(o) of the Act provides an exception to the general rule for employees under collective bargaining agreements. This section provides for the exclusion from hours worked of time spent by an employee in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee. During any week in which such clothes-changing or washing time was not so excluded, it must be counted as hours worked if the changing of clothes or washing is indispensable to the performance of the employee's work or is required by law or by the rules of the employer. The same would be true if the changing of clothes or washing was a preliminary or postliminary activity compensable by contract, custom, or practice as provided by section 4 of the Portal-to-Portal Act, and as discussed in § 785.9 and part 790 of this chapter. | |||
| 29:29:3.1.1.2.45.3.449.18 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.27 General. | DOL-WHD | Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met: (a) Attendance is outside of the employee's regular working hours; (b) Attendance is in fact voluntary; (c) The course, lecture, or meeting is not directly related to the employee's job; and (d) The employee does not perform any productive work during such attendance. | ||||
| 29:29:3.1.1.2.45.3.449.19 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.28 Involuntary attendance. | DOL-WHD | Attendance is not voluntary, of course, if it is required by the employer. It is not voluntary in fact if the employee is given to understand or led to believe that his present working conditions or the continuance of his employment would be adversely affected by nonattendance. | ||||
| 29:29:3.1.1.2.45.3.449.20 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.29 Training directly related to employee's job. | DOL-WHD | [30 FR 9912, Aug. 10, 1965] | The training is directly related to the employee's job if it is designed to make the employee handle his job more effectively as distinguished from training him for another job, or to a new or additional skill. For example, a stenographer who is given a course in stenography is engaged in an activity to make her a better stenographer. Time spent in such a course given by the employer or under his auspices is hours worked. However, if the stenographer takes a course in bookkeeping, it may not be directly related to her job. Thus, the time she spends voluntarily in taking such a bookkeeping course, outside of regular working hours, need not be counted as working time. Where a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in his present job, the training is not considered directly related to the employee's job even though the course incidentally improves his skill in doing his regular work. | |||
| 29:29:3.1.1.2.45.3.449.21 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.30 Independent training. | DOL-WHD | Of course, if an employee on his own initiative attends an independent school, college or independent trade school after hours, the time is not hours worked for his employer even if the courses are related to his job. | ||||
| 29:29:3.1.1.2.45.3.449.22 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.31 Special situations. | DOL-WHD | There are some special situations where the time spent in attending lectures, training sessions and courses of instruction is not regarded as hours worked. For example, an employer may establish for the benefit of his employees a program of instruction which corresponds to courses offered by independent bona fide institutions of learning. Voluntary attendance by an employee at such courses outside of working hours would not be hours worked even if they are directly related to his job, or paid for by the employer. | ||||
| 29:29:3.1.1.2.45.3.449.23 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.32 Apprenticeship training. | DOL-WHD | As an enforcement policy, time spent in an organized program of related, supplemental instruction by employees working under bona fide apprenticeship programs may be excluded from working time if the following criteria are met: (a) The apprentice is employed under a written apprenticeship agreement or program which substantially meets the fundamental standards of the Bureau of Apprenticeship and Training of the U.S. Department of Labor; and (b) Such time does not involve productive work or performance of the apprentice's regular duties. If the above criteria are met the time spent in such related supplemental training shall not be counted as hours worked unless the written agreement specifically provides that it is hours worked. The mere payment or agreement to pay for time spent in related instruction does not constitute an agreement that such time is hours worked. | ||||
| 29:29:3.1.1.2.45.3.450.24 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.33 General. | DOL-WHD | The principles which apply in determining whether or not time spent in travel is working time depend upon the kind of travel involved. The subject is discussed in §§ 785.35 to 785.41, which are preceded by a brief discussion in § 785.34 of the Portal-to-Portal Act as it applies to traveltime. | ||||
| 29:29:3.1.1.2.45.3.450.25 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.34 Effect of section 4 of the Portal-to-Portal Act. | DOL-WHD | [26 FR 190, Jan. 11, 1961, as amended at 76 FR 18860, Apr. 5, 2011] | The Portal Act provides in section 4(a) that except as provided in subsection (b) no employer shall be liable for the failure to pay the minimum wage or overtime compensation for time spent in “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.” Section 4(a) further provides that the use of an employer's vehicle for travel by an employee and activities that are incidental to the use of such vehicle for commuting are not considered principal activities when the use of such vehicle is within the normal commuting area for the employer's business or establishment and is subject to an agreement on the part of the employer and the employee or the representative of such employee. Subsection (b) provides that the employer shall not be relieved from liability if the activity is compensable by express contract or by custom or practice not inconsistent with an express contract. Thus traveltime at the commencement or cessation of the workday which was originally considered as working time under the Fair Labor Standards Act (such as underground travel in mines or walking from time clock to work-bench) need not be counted as working time unless it is compensable by contract, custom or practice. If compensable by express contract or by custom or practice not inconsistent with an express contract, such traveltime must be counted in computing hours worked. However, ordinary travel from home to work (see § 785.35) need not be counted as hours worked even if the employer agrees to pay for it. (See Tennessee Coal, Iron & RR. Co. v. Musecoda Local, 321 U.S. 590 (1946); Anderson v. Mt. Clemens Pottery Co., 328 U.S. 690 (1946); Walling v. Anaconda Copper Mining Co., 66 F. Supp. 913 (D. Mont. (1946).) | |||
| 29:29:3.1.1.2.45.3.450.26 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.35 Home to work; ordinary situation. | DOL-WHD | An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different job sites. Normal travel from home to work is not worktime. | ||||
| 29:29:3.1.1.2.45.3.450.27 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.36 Home to work in emergency situations. | DOL-WHD | There may be instances when travel from home to work is overtime. For example, if an employee who has gone home after completing his day's work is subsequently called out at night to travel a substantial distance to perform an emergency job for one of his employer's customers all time spent on such travel is working time. The Divisions are taking no position on whether travel to the job and back home by an employee who receives an emergency call outside of his regular hours to report back to his regular place of business to do a job is working time. | ||||
| 29:29:3.1.1.2.45.3.450.28 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.37 Home to work on special one-day assignment in another city. | DOL-WHD | A problem arises when an employee who regularly works at a fixed location in one city is given a special 1-day work assignment in another city. For example, an employee who works in Washington, DC, with regular working hours from 9 a.m. to 5 p.m. may be given a special assignment in New York City, with instructions to leave Washington at 8 a.m. He arrives in New York at 12 noon, ready for work. The special assignment is completed at 3 p.m., and the employee arrives back in Washington at 7 p.m. Such travel cannot be regarded as ordinary home-to-work travel occasioned merely by the fact of employment. It was performed for the employer's benefit and at his special request to meet the needs of the particular and unusual assignment. It would thus qualify as an integral part of the “principal” activity which the employee was hired to perform on the workday in question; it is like travel involved in an emergency call (described in § 785.36), or like travel that is all in the day's work (see § 785.38). All the time involved, however, need not be counted. Since, except for the special assignment, the employee would have had to report to his regular work site, the travel between his home and the railroad depot may be deducted, it being in the “home-to-work” category. Also, of course, the usual meal time would be deductible. | ||||
| 29:29:3.1.1.2.45.3.450.29 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.38 Travel that is all in the day's work. | DOL-WHD | Time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day's work, and must be counted as hours worked regardless of contract, custom, or practice. If an employee normally finishes his work on the premises at 5 p.m. and is sent to another job which he finishes at 8 p.m. and is required to return to his employer's premises arriving at 9 p.m., all of the time is working time. However, if the employee goes home instead of returning to his employer's premises, the travel after 8 p.m. is home-to-work travel and is not hours worked. ( Walling v. Mid-Continent Pipe Line Co., 143 F. 2d 308 (C. A. 10, 1944)) | ||||
| 29:29:3.1.1.2.45.3.450.30 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.39 Travel away from home community. | DOL-WHD | Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee's workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is worktime on Saturday and Sunday as well as on the other days. Regular meal period time is not counted. As an enforcement policy the Divisions will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile. | ||||
| 29:29:3.1.1.2.45.3.450.31 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.40 When private automobile is used in travel away from home community. | DOL-WHD | If an employee is offered public transporation but requests permission to drive his car instead, the employer may count as hours worked either the time spent driving the car or the time he would have had to count as hours worked during working hours if the employee had used the public conveyance. | ||||
| 29:29:3.1.1.2.45.3.450.32 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.41 Work performed while traveling. | DOL-WHD | Any work which an employee is required to perform while traveling must, of course, be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when he is permitted to sleep in adequate facilities furnished by the employer. | ||||
| 29:29:3.1.1.2.45.3.451.33 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.42 Adjusting grievances. | DOL-WHD | Time spent in adjusting grievances between an employer and employees during the time the employees are required to be on the premises is hours worked, but in the event a bona fide union is involved the counting of such time will, as a matter of enforcement policy, be left to the process of collective bargaining or to the custom or practice under the collective bargaining agreement. | ||||
| 29:29:3.1.1.2.45.3.451.34 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.43 Medical attention. | DOL-WHD | Time spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee's normal working hours on days when he is working constitutes hours worked. | ||||
| 29:29:3.1.1.2.45.3.451.35 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.44 Civic and charitable work. | DOL-WHD | Time spent in work for public or charitable purposes at the employer's request, or under his direction or control, or while the employee is required to be on the premises, is working time. However, time spent voluntarily in such activities outside of the employee's normal working hours is not hours worked. | ||||
| 29:29:3.1.1.2.45.3.451.36 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | C | Subpart C—Application of Principles | § 785.45 Suggestion systems. | DOL-WHD | Generally, time spent by employees outside of their regular working hours in developing suggestions under a general suggestion system is not working time, but if employees are permitted to work on suggestions during regular working hours the time spent must be counted as hours worked. Where an employee is assigned to work on the development of a suggestion, the time is considered hours worked. | ||||
| 29:29:3.1.1.2.45.4.452.1 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | D | Subpart D—Recording Working Time | § 785.46 Applicable regulations governing keeping of records. | DOL-WHD | Section 11(c) of the Act authorizes the Secretary to promulgate regulations requiring the keeping of records of hours worked, wages paid and other conditions of employment. These regulations are published in part 516 of this chapter. Copies of the regulations may be obtained on request. | ||||
| 29:29:3.1.1.2.45.4.452.2 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | D | Subpart D—Recording Working Time | § 785.47 Where records show insubstantial or insignificant periods of time. | DOL-WHD | In recording working time under the Act, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. The courts have held that such trifles are de minimis. ( Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)) This rule applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee's fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him. See Glenn L. Martin Nebraska Co. v. Culkin, 197 F. 2d 981, 987 (C.A. 8, 1952), cert. denied, 344 U.S. 866 (1952), rehearing denied, 344 U.S. 888 (1952), holding that working time amounting to $1 of additional compensation a week is “not a trivial matter to a workingman,” and was not de minimis; Addison v. Huron Stevedoring Corp., 204 F. 2d 88, 95 (C.A. 2, 1953), cert. denied 346 U.S. 877, holding that “To disregard workweeks for which less than a dollar is due will produce capricious and unfair results.” Hawkins v. E. I. du Pont de Nemours & Co., 12 W.H. Cases 448, 27 Labor Cases, para. 69,094 (E.D. Va., 1955), holding that 10 minutes a day is not de minimis. | ||||
| 29:29:3.1.1.2.45.4.452.3 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | D | Subpart D—Recording Working Time | § 785.48 Use of time clocks. | DOL-WHD | (a) Differences between clock records and actual hours worked. Time clocks are not required. In those cases where time clocks are used, employees who voluntarily come in before their regular starting time or remain after their closing time, do not have to be paid for such periods provided, of course, that they do not engage in any work. Their early or late clock punching may be disregarded. Minor differences between the clock records and actual hours worked cannot ordinarily be avoided, but major discrepancies should be discouraged since they raise a doubt as to the accuracy of the records of the hours actually worked. (b) “Rounding” practices. It has been found that in some industries, particularly where time clocks are used, there has been the practice for many years of recording the employees' starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes this practice of computing working time will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked. | ||||
| 29:29:3.1.1.2.45.5.452.1 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | E | Subpart E—Miscellaneous Provisions | § 785.49 Applicable provisions of the Fair Labor Standards Act. | DOL-WHD | [26 FR 190, Jan. 11, 1961, as amended at 26 FR 7732, Aug. 18, 1961] | (a) Section 6. Section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206) requires that each employee, not specifically exempted, who is engaged in commerce, or in the production of goods for commerce, or who is employed in an enterprise engaged in commerce, or in the production of goods for commerce receive a specified minimum wage. (b) Section 7. Section 7(a) of the Act (29 U.S.C. 207) provides that persons may not be employed for more than a stated number of hours a week without receiving at least one and one-half times their regular rate of pay for the overtime hours. (c) Section 3(g). Section 3(g) of this act provides that: “ ‘Employ’ includes to suffer or permit to work.” (d) Section 3(o). Section 3(o) of this act provides that: “Hours worked—in determining for the purposes of sections 6 and 7 the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from the measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employees.” | |||
| 29:29:3.1.1.2.45.5.452.2 | 29 | Labor | V | B | 785 | PART 785—HOURS WORKED | E | Subpart E—Miscellaneous Provisions | § 785.50 Section 4 of the Portal-to-Portal Act. | DOL-WHD | [26 FR 190, Jan. 11, 1961, as amended at 76 FR 18860, Apr. 5, 2011] | Section 4 of this Act provides that: (a) Except as provided in paragraph (b), of this section, no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Davis-Bacon Act, on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in, on, or after May 14, 1947: (1) Walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) Activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday which he ceases, such principal activity or activities. For purposes of this subsection, the use of an employer's vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee's principal activities if the use of such vehicle for travel is within the normal commuting area for the employer's business or establishment and the use of the employer's vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee. (b) Notwithstanding the provisions of paragraph (a) of this section which relieve an employer from liability and punishment with respect to an activity the employer shall not be so relieved if such activity is compensable by either: (1) An express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or (2) A custom or practice in effect, at the time of such activity, at the establishment or other place where such employee is emp… | |||
| 7:7:7.1.1.4.30.0.9.1 | 7 | Agriculture | VII | D | 785 | PART 785—CERTIFIED MEDIATION PROGRAM | § 785.1 General. | FSA | [67 FR 57315, Sept. 10, 2002, as amended at 87 FR 13125, Mar. 9, 2022] | (a) States meeting conditions specified in this part may have their mediation programs certified by the Farm Service Agency (FSA) and receive Federal grant funds for the operation and administration of agricultural mediation programs. (b) U.S. Department of Agriculture (USDA) agencies participate in mediations pursuant to agency rules governing their informal appeals processes. Where mediation of an agency decision by a Certified Mediation Program is available to participants in an agency program as part of the agency's informal appeal process, the agency will offer a participant receiving notice of an agency decision the opportunity to mediate the decision under the State's Certified Mediation Program, in accordance with the agency's informal appeals regulations in this chapter. (c) USDA agencies making mediation available as part of the agency informal appeals process may execute memoranda of understanding with a certified mediation program concerning procedures and policies for mediations during agency informal appeals that are not inconsistent with this part or other applicable regulations. Each such memorandum of understanding will be deemed part of the grant agreement governing the operation and administration of a State certified mediation program receiving Federal grant funds under this part. (d) A mediator in a Certified Mediation Program under this part has no authority to make decisions that are binding on parties to a dispute. (e) No person may be compelled to participate in mediation provided through a mediation Certified Mediation Program under this part. This paragraph (e) shall not affect a State law requiring mediation before foreclosure on agricultural land or property. | |||||
| 7:7:7.1.1.4.30.0.9.10 | 7 | Agriculture | VII | D | 785 | PART 785—CERTIFIED MEDIATION PROGRAM | § 785.10 Penalty for non-compliance. | FSA | [67 FR 57315, Sept. 10, 2002, as amended at 87 FR 13126, Mar. 9, 2022] | (a) The Administrator is authorized to withdraw the certification of a State's Certified Mediation Program, terminate or suspend the grant to the State's Certified Mediation Program, require a return of unspent grant funds, a reimbursement of grant funds on account of expenditures that are not allowed, and may impose any other penalties or sanctions authorized by law if the Administrator determines that: (1) The State's Certified Mediation Program, at any time, does not meet the requirements in this part for certification; (2) The State's Certified Mediation Program is not being operated in a manner consistent with the features of the program as certified by FSA, with the regulations in this part, or the grant agreement; (3) Costs that are not allowed under § 785.4(b) are being paid out of grant funds; (4) The mediation program fails to grant access to mediation records for purposes specified in § 785.8; or (5) Reports submitted by a State on its Certified Mediation Program as required by § 785.8 are false, contain misrepresentations or material omissions, or are otherwise misleading. (b) In the event that FSA gives notice to the State of its intent to enforce any withdrawal of certification or other penalty for non-compliance, USDA agencies will cease to participate in any mediation conducted by the State's Certified Mediation Program immediately upon delivery of such notice to the State. | |||||
| 7:7:7.1.1.4.30.0.9.11 | 7 | Agriculture | VII | D | 785 | PART 785—CERTIFIED MEDIATION PROGRAM | § 785.11 Reconsideration by the Administrator. | FSA | [67 FR 57315, Sept. 10, 2002, as amended at 79 FR 75996, Dec. 19, 2014; 87 FR 13127, Mar. 9, 2022] | (a) A State's Certified Mediation Program may request that the Administrator reconsider any determination that a State is not a qualifying State under § 785.3 and any penalty decision made under § 785.10. The decision of the Administrator upon reconsideration shall be the final administrative decision of FSA. (b) Nothing in this part shall preclude action to suspend or debar a State's Certified Mediation Program or administering entity under 2 CFR parts 180 and 417 following a withdrawal of certification of the State's Certified Mediation Program. | |||||
| 7:7:7.1.1.4.30.0.9.12 | 7 | Agriculture | VII | D | 785 | PART 785—CERTIFIED MEDIATION PROGRAM | § 785.12 Nondiscrimination. | FSA | [67 FR 57315, Sept. 10, 2002, as amended at 87 FR 13127, Mar. 9, 2022] | The provisions of parts 15 and 15b of this title and part 90 of title 45 apply to activities financed by grants made under this part. | |||||
| 7:7:7.1.1.4.30.0.9.13 | 7 | Agriculture | VII | D | 785 | PART 785—CERTIFIED MEDIATION PROGRAM | § 785.13 OMB Control Number. | FSA | The information collection requirements in this regulation have been approved by the Office of Management and Budget and assigned OMB control number 0560-0165. | ||||||
| 7:7:7.1.1.4.30.0.9.2 | 7 | Agriculture | VII | D | 785 | PART 785—CERTIFIED MEDIATION PROGRAM | § 785.2 Definitions. | FSA | [67 FR 57315, Sept. 10, 2002, as amended at 87 FR 13125, Mar. 9, 2022] | Administrator means the Administrator, FSA, or authorized designee. Certified Mediation Program means a program providing mediation services that has been certified in accordance with § 785.3. Confidential mediation means a mediation process in which the mediator will not disclose to any person oral or written communications provided to the mediator in confidence, except as allowed by 5 U.S.C. 574 or § 785.9. Covered persons means agricultural producers, their creditors (as applicable), persons directly affected by actions of the USDA, and any other persons involved in covered issues under § 785.4(d); for which mediation services are provided by a Certified Mediation Program. Fiscal year means the period of time beginning October 1 of one year and ending September 30 of the next year and designated by the year in which it ends. FSA means the Farm Service Agency of the U.S. Department of Agriculture, or a successor agency. Mediation services means all activities relating to the intake and scheduling of mediations; the provision of background and selected information regarding the mediation process; financial advisory and counseling services (as reasonable and necessary to prepare parties for mediation) performed by a person other than a Certified Mediation Program mediator; and mediation sessions in which a mediator assists disputing parties in voluntarily reaching mutually agreeable settlement of issues within the laws, regulations, and the agency's generally applicable program policies and procedures, but has no authoritative decision making power. Mediator means a neutral individual who functions specifically to aid the parties in a dispute during a mediation process. Qualified mediator means a mediator who meets the training requirements established by State law in the State in which mediation services will be provided or, where a State has no law prescribing mediator qualifications, an individual who has attended a minimum of 40 hours of core mediator knowledge and skills training and, to rem… | |||||
| 7:7:7.1.1.4.30.0.9.3 | 7 | Agriculture | VII | D | 785 | PART 785—CERTIFIED MEDIATION PROGRAM | § 785.3 Annual certification of a State's Certified Mediation Program. | FSA | [67 FR 57315, Sept. 10, 2002, as amended at 87 FR 13125, Mar. 9, 2022] | To obtain certification from FSA for the Certified Mediation Program, the State must meet the requirements of this section. (a) New request for certification. A new request for certification of a State mediation program must include descriptive and supporting information regarding the mediation program and a certification that the mediation program meets certain requirements as prescribed in this section. If a State is also qualifying its mediation program to request a grant of Federal funds under the Certified Mediation Program, the State must submit with its request for certification additional information as specified in § 785.4. (1) Description of mediation program. The State must submit a narrative describing the following with supporting documentation: (i) A summary of the program; (ii) An identification of issues available for mediation under the program; (iii) Management of the program; (iv) Mediation services offered by the program; (v) Program staffing and staffing levels; (vi) That the State's Certified Mediation Program ensures, in the case of other issues covered by the Certified Mediation Program, that: (A) USDA receives adequate notification of those issues by the deadline specified in § 785.6(a)(1); and (B) Persons directly affected by actions of USDA receive adequate notification of the Certified Mediation Program; and (vii) State statutes and regulations in effect that are applicable to the State's mediation program; and (viii) A description of the State program's education and training requirements for mediators including: (A) Training in mediation skills and in USDA programs; (B) Identification and compliance with any State law requirements; and (C) Other steps by the State's program to recruit and deploy qualified mediators. (ix) Any other information requested by FSA; (2) Certification. The Governor, or head of a State agency designated by the Governor, must certify in writing to the Administrator that the State's mediation program meets the following program requireme… | |||||
| 7:7:7.1.1.4.30.0.9.4 | 7 | Agriculture | VII | D | 785 | PART 785—CERTIFIED MEDIATION PROGRAM | § 785.4 Grants to States with a Certified Mediation Program. | FSA | [67 FR 57315, Sept. 10, 2002, as amended at 79 FR 75996, Dec. 19, 2014; 87 FR 13125, Mar. 9, 2022] | (a) Eligibility. To be eligible to receive a grant, a State's Certified Mediation Program must: (1) Be certified as described in § 785.3; and (2) Submit an application for a grant with its certification or re-certification request as set forth in this section. (b) Application for grant. A State requesting a grant will submit the following to the Administrator: (1) Application for Federal Assistance, Standard Form 424 (available at http://www.whitehouse.gov/omb/grants/ ); (2) A budget with supporting details providing estimates of the cost of operation and administration of the Certified Mediation Program. Proposed direct expenditures will be grouped in the categories of allowable direct costs under the Certified Mediation Program as specified in paragraph (c)(1) of this section; (3) Other information pertinent to the funding criteria specified in § 785.7(b); and (4) Any additional supporting information requested by FSA in connection with its review of the grant request. (c) Grant purposes. Grants made under this part will be used only to pay the allowable costs of operation and administration of the components of a qualifying State's Certified Mediation Program that have been certified as specified in § 785.3(a)(2). Costs of services other than mediation services to covered issues and covered persons within the State are not considered part of the cost of operation and administration of the Certified Mediation Program for the purpose of determining the amount of a grant award. (1) Allowable costs. Subject to applicable cost principles in 2 CFR part 200, subpart E, allowable costs for operations and administration are limited to those that are reasonable and necessary to carry out the State's Certified Mediation Program in providing mediation services for covered issues and covered persons within the State. Specific categories of costs allowable under the State's Certified Mediation Program include, and are limited to: (i) Staff salaries and fringe benefits; (ii) Reasonable fees and costs of m… | |||||
| 7:7:7.1.1.4.30.0.9.5 | 7 | Agriculture | VII | D | 785 | PART 785—CERTIFIED MEDIATION PROGRAM | § 785.5 Fees for mediation services. | FSA | [87 FR 13125, Mar. 9, 2022] | A requirement that non-USDA parties who elect to participate in mediation pay a fee for mediation services will not preclude certification of a State's mediation program or its eligibility for a grant; however, if participation in mediation is mandatory for a USDA agency, a State's Certified Mediation Program may not require the USDA agency to pay a fee to participate in a mediation. | |||||
| 7:7:7.1.1.4.30.0.9.6 | 7 | Agriculture | VII | D | 785 | PART 785—CERTIFIED MEDIATION PROGRAM | § 785.6 Deadlines and address. | FSA | [67 FR 57315, Sept. 10, 2002, as amended at 87 FR 13125, Mar. 9, 2022] | (a) Deadlines. (1) To be a qualifying State as of the beginning of a fiscal year and to be eligible for grant funding as of the beginning of the fiscal year, the Governor of a State or head of a State agency designated by the Governor of a State must submit a request for certification and application for grant on or before August 1 of the calendar year in which the fiscal year begins. (2) Requests received after August 1. FSA will accept requests for re-certifications and for new certifications of State mediation programs after August 1 in each calendar year; however, such requests will not be considered for grant funding under § 785.7(c) until after March 1. (3) Requests for additional grant funds during a fiscal year. Any request by a State's Certified Mediation Program, that is eligible for grant funding as of the beginning of the fiscal year, for additional grant funds during that fiscal year for additional, unbudgeted demands for mediation services must be submitted on or before March 1 of the fiscal year. (b) Address. The request for certification or re-certification and any grant request must be mailed or delivered to: Administrator, Farm Service Agency, U.S. Department of Agriculture, Stop 0501, 1400 Independence Avenue, SW., Washington, DC 20250-0501. | |||||
| 7:7:7.1.1.4.30.0.9.7 | 7 | Agriculture | VII | D | 785 | PART 785—CERTIFIED MEDIATION PROGRAM | § 785.7 Distribution of Federal grant funds. | FSA | [67 FR 57315, Sept. 10, 2002, as amended at 87 FR 13126, Mar. 9, 2022] | (a) Maximum grant award. A grant award shall not exceed 70 percent of the budgeted allowable costs of operation and administration of the State's Certified Mediation Program. In no case will the sum granted to a State exceed $500,000 per fiscal year. (b) Funding criteria. FSA will consider the following in determining the grant award to a qualifying State: (1) Demand for and use of mediation services (historical and projected); (2) Scope of mediation services; (3) Service record of the State's Certified Mediation Program, as evidenced by: (i) Number of inquiries; (ii) Number of requests for and use of mediation services, historical and projected, as applicable; (iii) Number of mediations resulting in signed mediation agreements; (iv) Timeliness of mediation services; and (v) Activities promoting awareness and use of mediation; (4) Historic use of program funds (budgeted versus actual); and (5) Material changes in the State program. (c) Disbursements of grant funds. (1) Grant funds will be paid in advance, in installments throughout the Federal fiscal year as requested by a State's Certified Mediation Program and approved by FSA. The initial payment to a Certified Mediation Program in a qualifying State eligible for grant funding as of the beginning of a fiscal year will represent at least one-fourth of the State's annual grant award. The initial payment will be made as soon as practicable after certification, or re-certification, after grant funds are appropriated and available. (2) Payment of grant funds will be by electronic funds transfer to the designated account of each State's Certified Mediation Program, as approved by FSA. (d) Administrative reserve fund. After funds are appropriated, FSA will set aside 5 percent of the annual appropriation for use as an administrative reserve. (1) Subject to paragraph (a) of this section and the availability of funds, the Administrator will allocate and disburse sums from the administrative reserve in the following priority order: (i) Disbursement… | |||||
| 7:7:7.1.1.4.30.0.9.8 | 7 | Agriculture | VII | D | 785 | PART 785—CERTIFIED MEDIATION PROGRAM | § 785.8 Reports by qualifying States receiving mediation grant funds. | FSA | [67 FR 57315, Sept. 10, 2002, as amended at 79 FR 75996, Dec. 19, 2014; 87 FR 13126, Mar. 9, 2022] | (a) Annual report by the State on its Certified Mediation Program. No later than 30 days following the end of a fiscal year during which a qualifying State received a grant award under this part, the State must submit to the Administrator an annual report on its Certified Mediation Program. The annual report must include the following: (1) A review of mediation services provided by the State's Certified Mediation Program during the preceding Federal fiscal year providing information concerning the following matters: (i) A narrative review of the goals and accomplishments of the State's Certified Mediation Program in providing intake and scheduling of cases; the provision of background and selected information regarding the mediation process; financial advisory and counseling services, training, notification, public education, increasing resolution rates, and obtaining program funding from sources other than the grant under this part. (ii) A quantitative summary for the preceding fiscal year, and for prior fiscal years, as appropriate, for comparisons of program activities and outcomes of the cases opened and closed during the reporting period; mediation services provided to clients grouped by program and subdivided by issue, USDA agency, types of covered persons and other participants; and the resolution rate for each category of issue reported for cases closed during the year; (2) An assessment of the performance and effectiveness of State's Certified Mediation Programconsidering: (i) Estimated average costs of mediation services per client with estimates furnished in terms of the allowable costs set forth in § 785.4(b)(1). (ii) Estimated savings to the State as a result of having the State mediation program certified including: (A) Projected costs of avoided USDA administrative appeals based on projections of the average costs of such appeals furnished to the State by FSA, with the assistance of the USDA National Appeals Division and other agencies as appropriate; (B) In agricultural credit mediations… | |||||
| 7:7:7.1.1.4.30.0.9.9 | 7 | Agriculture | VII | D | 785 | PART 785—CERTIFIED MEDIATION PROGRAM | § 785.9 Access to program records. | FSA | [67 FR 57315, Sept. 10, 2002, as amended at 79 FR 75996, Dec. 19, 2014; 87 FR 13126, Mar. 9, 2022] | The regulations in 2 CFR 200.334 through 200.338 provide general record retention and access requirements for records pertaining to grants. In addition, the State must maintain and provide the Government access to pertinent records regarding services delivered by the State's Certified Mediation Program for purposes of evaluation, audit and monitoring of the State Certified Mediation Program as follows: (a) For purposes of this section, pertinent records consist of: the names and addresses of applicants for mediation services; dates mediations opened and closed; issues mediated; dates of sessions with mediators; names of mediators; mediation services furnished to participants by the program; the sums charged to parties for each mediation service; records of delivery of services to prepare parties for mediation (including financial advisory and counseling services); and the outcome of the mediation services including formal settlement results and supporting documentation. (b) State mediators will notify all participants in writing at the beginning of the mediation session that the USDA, including the USDA Inspector General, the Comptroller General of the United States, the Administrator, and any of their representatives will have access to pertinent records as necessary to monitor and to conduct audits, investigations, or evaluations of mediation services funded in whole or in part by the USDA. (c) All participants in a mediation must sign and date an acknowledgment of receipt of such notice from the mediator. The State's Certified Mediation Program must maintain originals of such acknowledgments in its mediation files for at least 3 years. |
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