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Federal Register / Vol. 61, No.

62 / Friday, March 29, 1996 / Proposed Rules 14035

either with a new actuator having P/N the States, or on the distribution of been eliminated, the request should include
40574–4, or with an actuator having P/ power and responsibilities among the specific proposed actions to address it.
N 40574–2 and an appropriate various levels of government. Therefore, Compliance: Required as indicated, unless
nameplate. The actions would be in accordance with Executive Order accomplished previously.
required to be accomplished in 12612, it is determined that this To prevent improper functioning of a
certain actuator, which could result in a fuel
accordance with the service bulletin proposal would not have sufficient imbalance due to the inability of the
described previously. federalism implications to warrant the flightcrew to crossfeed fuel, or which could
Operators should note that, although preparation of a Federalism Assessment. prevent the pilot from shutting off the fuel to
the service bulletin specifies For the reasons discussed above, I the engine following an engine failure and/
replacement of actuators having P/N certify that this proposed regulation (1) or fire, accomplish the following:
40574–5 (Kearfott Model 3715–9) and P/ is not a ‘‘significant regulatory action’’ (a) Within 36 months after the effective
N 40574–2 (Kearfott Model 3715–7 and under Executive Order 12866; (2) is not date of this AD, replace the actuator having
3715–8), this proposed AD would a ‘‘significant rule’’ under the DOT P/N 40574–5 (Kearfott Model 3715–9) on the
require replacement of only P/N 40574– Regulatory Policies and Procedures (44 fuel system crossfeed valve and the engine
shutoff valves with either a new actuator
5. Actuators having P/N 40574–2 FR 11034, February 26, 1979); and (3) if having P/N 40574–4, or an actuator having P/
currently are required to be replaced in promulgated, will not have a significant N 40574–2 with a nameplate identified in
accordance with AD 95–15–06. economic impact, positive or negative, paragraph III, Material of J.C. Carter Company
[Note: The FAA’s normal policy is that on a substantial number of small entities Service Bulletin 61163–28–09, dated
when an AD requires a substantive change, under the criteria of the Regulatory September 28, 1995. The replacement shall
such as a change (expansion) in its Flexibility Act. A copy of the draft be done in accordance with J.C. Carter
applicability, the ‘‘old’’ AD is superseded by regulatory evaluation prepared for this Company Service Bulletin 61163–28–09,
removing it from the system and a new AD action is contained in the Rules Docket. dated September 28, 1995.
is added. In the case of this AD action, the (b) An alternative method of compliance or
A copy of it may be obtained by adjustment of the compliance time that
FAA normally would have proposed
superseding AD 95–15–06 to expand its
contacting the Rules Docket at the provides an acceptable level of safety may be
applicability to include the J.C. Carter location provided under the caption used if approved by the Manager, Seattle
Company fuel valve actuator having P/N ADDRESSES. Aircraft Certification Office (ACO), FAA,
40574–5 as an additional affected actuator. Transport Airplane Directorate. Operators
However, in reconsideration of the entire
List of Subjects in 14 CFR Part 39 shall submit their requests through an
fleet size that would be affected by a Air transportation, Aircraft, Aviation appropriate FAA Principal Maintenance
supersedure action, and the consequent safety, Safety. Inspector, who may add comments and then
workload associated with revising send it to the Manager, Seattle ACO.
maintenance record entries, the FAA has The Proposed Amendment Note 2: Information concerning the
determined that a less burdensome approach Accordingly, pursuant to the existence of approved alternative methods of
is to issue a separate AD applicable only to authority delegated to me by the compliance with this AD, if any, may be
the additional actuator. This AD does not obtained from the Seattle ACO.
supersede AD 95–15–06; airplanes listed in Administrator, the Federal Aviation
Administration proposes to amend part (c) Special flight permits may be issued in
the applicability of AD 95–15–06 are
39 of the Federal Aviation Regulations accordance with sections 21.197 and 21.199
required to continue to comply with the
of the Federal Aviation Regulations (14 CFR
requirements of that AD. This proposed AD (14 CFR part 39) as follows:
21.197 and 21.199) to operate the airplane to
is a separate AD action, and is applicable
a location where the requirements of this AD
only to airplanes equipped with J.C. Carter PART 39—AIRWORTHINESS
Company fuel valve actuator having P/N can be accomplished.
DIRECTIVES
40574–5.] Issued in Renton, Washington, on March
1. The authority citation for part 39 25, 1996.
There are approximately 4,137 Boeing
continues to read as follows: Darrell M. Pederson,
Model 727 and Model 737 series
Authority: 49 U.S.C. 106(g), 40113, 44701. Acting Manager, Transport Airplane
airplanes of the affected design in the
Directorate, Aircraft Certification Service.
worldwide fleet. The FAA estimates that § 39.13 [Amended] [FR Doc. 96–7663 Filed 3–28–96; 8:45 am]
2,190 airplanes of U.S. registry would be 2. Section 39.13 is amended by BILLING CODE 4910–13–P
affected by this proposed AD, that it adding the following new airworthiness
would take approximately 3 work hours directive:
per airplane to accomplish the proposed
actions, and that the average labor rate Boeing: Docket 96–NM–31–AD. DEPARTMENT OF LABOR
is $60 per work hour. Required parts Applicability: All Model 727 and Model
737 series airplanes; equipped with J.C. Employment Standards
would be supplied by J.C. Carter
Carter Company fuel valve actuator having Administration; Wage and Hour
Company at no cost to operators. Based part number (P/N) 40574–5; certificated in Division
on these figures, the cost impact of the any category.
proposed AD on U.S. operators is Note 1: This AD applies to each airplane 29 CFR Part 500
estimated to be $394,200, or $180 per identified in the preceding applicability
airplane. RIN 1215–AA93
provision, regardless of whether it has been
The cost impact figure discussed modified, altered, or repaired in the area
above is based on assumptions that no subject to the requirements of this AD. For Migrant and Seasonal Agricultural
operator has yet accomplished any of airplanes that have been modified, altered, or Worker Protection Act
the proposed requirements of this AD repaired so that the performance of the AGENCY: Wage and Hour Division,
action, and that no operator would requirements of this AD is affected, the
owner/operator must request approval for an
Employment Standards Administration,
accomplish those actions in the future if Labor.
alternative method of compliance in
this AD were not adopted. accordance with paragraph (b) of this AD. ACTION: Notice of proposed rulemaking,
The regulations proposed herein The request should include an assessment of request for comments.
would not have substantial direct effects the effect of the modification, alteration, or
on the States, on the relationship repair on the unsafe condition addressed by SUMMARY: This document proposes
between the national government and this AD; and, if the unsafe condition has not regulations to amend the definition of
14036 Federal Register / Vol. 61, No. 62 / Friday, March 29, 1996 / Proposed Rules

‘‘employ’’ under the Migrant and fully with (1) the Fair Labor Standards considered in determining the existence
Seasonal Agricultural Worker Protection Act (FLSA) regulations at 29 CFR 791; of such relationships in the agricultural
Act (MSPA). Consistent with Executive (2) seminal court decisions regarding context. This Departmental guidance
Order 12866, which concerns regulatory the employment relationship; and (3) appears to be subject to some
planning and review (see 58 Fed. Reg. the MSPA legislative history. misunderstanding in the regulated
51735 (Oct. 4, 1993)), this document The MSPA statutory definition of community and the courts with regard
proposes to amend MSPA regulations to ‘‘employ’’, 29 U.S.C. 1803(3)(5), from to the applicability of the legal
clarify and make easier to understand which the concept of ‘‘joint standards under MSPA and the Fair
the definition of ‘‘independent employment’’ is drawn, is the FLSA Labor Standards Act, which contain the
contractor’’ and ‘‘joint employment’’ statutory definition of ‘‘employ’’, 29 identical statutory standard.1 It is the
under MSPA, with the goal of U.S.C. 203(g), incorporated by reference. Department’s view that the MSPA ‘‘joint
minimizing the potential for uncertainty In keeping with the President’s employment’’ regulation should be
and litigation arising from such executive order directive to Federal modified to focus more closely on the
uncertainty and to better guide the agencies to identify rules that could be ultimate test for employment and joint
Department’s enforcement activities. clarified to provide more complete and employment as established by the
DATES: Comments on the proposed rule understandable guidance to the federal courts, i.e., ‘‘economic
are due on or before June 12, 1996. regulated community, the Department dependence,’’ and to further clarify the
ADDRESSES: Submit written comments proposes to amend the MSPA ‘‘joint multi-factor analysis to be used to
to Maria Echaveste, Administrator, employment’’ regulation. The determine the existence of ‘‘economic
Wage and Hour Division, Employment Department has notified the public and dependence’’ in the agricultural context.
Standards Administration, U.S. the regulated community of its Such a clarified regulation will ensure
Department of Labor, Room S–3502, 200 intention, through the regulatory agenda more consistent application of the FLSA
Constitution Avenue, NW., Washington, and regulatory planning process, to principles of employment and ‘‘joint
DC 20210. Commenters who wish to amend this regulation. See 60 Fed. Reg. employment’’ under MSPA, and will
receive notification of receipt of 23546 (May 8, 1995) and 60 Fed. Reg. also ensure the full implementation of
comments are requested to include a 59614 (Nov. 28, 1995). the Congressional intent in adopting
self-addressed, stamped post card or to those principles in MSPA.
III. Summary and Discussion
submit them by certified mail, return Legislative and Judicial Basis for ‘‘Joint
receipt requested. As a convenience to Joint Employment Standard Under
Employment’’
commenters, comments may be MSPA
transmitted by facsimile (‘‘FAX’’) The FLSA defines the term employ as
The Department proposes to amend
machine to (202) 219–5122. This is not meaning ‘‘to suffer or permit to work’’
the MSPA regulation defining the
a toll-free number. If transmitted by (29 U.S.C. 203(g)), and the courts have
employment and joint-employment
FAX and a hard copy is also submitted given an expansive interpretation to the
relationship in agriculture. Having
by mail, please indicate on the hard statutory definition of employ under the
reviewed this regulation in the normal
copy that it is a duplicate copy of the FLSA in order to accomplish the
course of DOL operations, the
FAX transmission. remedial purposes of the Act.2 In
Department recognizes the need for a
accordance with the FLSA’s broad
FOR FURTHER INFORMATION CONTACT: clearer and more complete regulation
definitions and remedial purposes, the
Michael Hancock, Office of Enforcement setting forth the applicable criteria,
traditional common law ‘‘right to
Policy, Farm Labor Team, Wage and thereby making the regulation more
control’’ test has been rejected in
Hour Division, Employment Standards ‘‘user-friendly.’’ The purpose of the
interpreting the FLSA definition of
Administration, U.S. Department of amendment is to clarify the regulation
employ. Instead, the test of an
Labor, Room S–3510, 200 Constitution and, thus, to avoid confusion and
employment relationship under the
Avenue, NW., Washington, DC 20210; misapplication of the standards to be
FLSA is ‘‘economic dependence,’’
telephone (202) 219–7605. This is not a considered in determining the existence
which requires an examination of the
toll-free number. Copies of this NPRM of the employment and joint-
relationships among the employee and
in alternative formats may be obtained employment relationship. A further
the putative employer(s) to determine
by calling (202) 219–7605, (202) 219– purpose is to update the regulation to
upon whom the employee is
4634 (TDD). The alternative formats reflect more completely the
economically dependent.3 The
available are large print, electronic file Congressional intent in the enactment of
determination of economic dependence
on computer disk and audio-tape. MSPA, the state of the law, and the
is based upon the ‘‘economic reality’’ of
SUPPLEMENTARY INFORMATION:
Department’s understanding of the
all the circumstances and not upon
employment and joint employment
I. Paperwork Reduction Act of 1995 isolated factors or contractual labels.4
standard.
Since the ‘‘economic reality’’ test first
This proposed rule contains no The Department has intended for
delineated by the Supreme Court in
reporting or recordkeeping requirements some time to up-date and clarify this
Rutherford Food, the courts have
subject to the Paperwork Reduction Act MSPA regulation. The matter has been
uniformly considered a number of
of 1995 (Pub. L. 104–13). included in the DOL regulatory agendas
factors, no one of which is
published in the Federal Register (60
II. Background FR 23546 (May 8, 1995); 60 FR 59614 1 Compare: Hodgson v. Griffin & Brand of
The MSPA definition of ‘‘joint (November 28, 1995)). The present McAllen, Inc., 471 F.2d 235 (5th Cir.), cert. denied,
employment,’’ 29 CFR 500.20(h)(4), is proposed rulemaking undertakes the 414 U.S. 819 (1973), with Aimable v. Long and Scott
proposed to be amended to clarify and previously announced revision of the Farms, 20 F.3d 434 (11th Cir.), cert. denied, 115
provide more accurate and complete S.Ct. 351 (1994).
employment and joint employment 2 See Rutherford Food Corp. v. McComb, 331 U.S.
information to the regulated definition. 722, 729 (1947).
community, thereby making the MSPA The current MSPA ‘‘joint 3 See Real v. Driscoll Strawberry Assoc., Inc., 603
regulations more ‘‘user-friendly.’’ The employment’’ regulation identifies F.2d 748 (9th Cir. 1979); Griffin & Brand, supra.
proposed regulation comports more particular factors which should be 4 Rutherford Food; Griffin & Brand, supra.
Federal Register / Vol. 61, No. 62 / Friday, March 29, 1996 / Proposed Rules 14037

determinative. Instead, the multi-factor that the ‘‘. . . determination of whether eliminates redundancy (e.g., items in
analysis is a means of gauging whether the employment is to be considered the current regulation dealing with
the worker is economically dependent joint employment depends upon all the aspects of control are consolidated) and
on the business(es) for which the worker facts in the particular case.’’ 29 CFR provides more complete guidance as to
is ‘‘suffered or permitted to work’’ and 500.20(h)(4)(i). The factors identified in appropriate consideration of factors.
whether the nature and degree of that the regulation were not intended by the Comments are requested concerning the
dependence constitutes an employment Department to be a checklist for factors listed, in particular whether or
relationship within the intended determining a joint employment not additional factors should be
protections of the FLSA. relationship; nor were the factors included in the illustrative list of
The joint employment doctrine, intended to be given greater weight than
factors.
which has long been recognized under other relevant factors presented in a
the FLSA case law,5 is defined by the particular case or developed in the case Executive Order 12866/Section 202 of
FLSA regulation to mean a condition in law. To the extent that courts and the the Unfunded Mandates Reform Act of
which ‘‘[a] single individual stands in regulated community may have strayed 1995
the relation of an employee to two or from the ‘‘economic reality’’/‘‘economic
more persons at the same time’’ (29 CFR dependence’’ analysis by applying the This proposed rule is not
791.2(a)). A joint employment relation is regulation as a rigid checklist, or ‘‘economically significant’’ within the
found when ‘‘employment by one treating the regulation as an exclusive meaning of Executive Order 12866, nor
employer is not completely list which precludes consideration of does it require a § 202 statement under
disassociated from employment by the additional factors (e.g., whether the Unfunded Mandates Reform Act of
other employer,’’ such a determination workers’ activities are an integral part of 1995. However, because the rule may
depending upon ‘‘all the facts in the the putative employer’s operation), or raise novel legal or policy issues arising
particular case.’’ Id. distorting or placing undue emphasis on out of legal mandates, it has been
Under MSPA, the term employ has particular factors (e.g., ‘‘control’’ determined by OMB to be a ‘‘significant
the same meaning as that term under the misconstrued as being direct regulatory action’’ within the meaning
FLSA. 29 U.S.C. 1802(5). Congress supervision of workers’ activities), the of § 3(f)(4) of Executive Order 12866.
enacted this express incorporation of regulation is not only misinterpreted but The proposed rule proposes to amend
the FLSA definition of employ with the is also being applied so as to frustrate
the MSPA regulations to clarify the
deliberate intention of adopting the the express intention of Congress in
enacting MSPA. concepts of employ, employer,
FLSA case law defining employment
employee, and joint employment. No
and joint employment. Congress Proposed ‘‘Joint Employer’’ Rule economic analysis is required because
specifically stated that the ‘‘joint
employer doctrine’’ articulated under In order to resolve any confusion or the rule will not have a significant
the FLSA was to serve as the ‘‘central misunderstanding of the current MSPA economic impact.
foundation’’ of the MSPA and ‘‘the best regulation and to provide clearer and
Regulatory Flexibility Analysis
means by which to ensure that the more complete guidance to the
purposes of this Act would be regulated community, the regulation is This proposed rule will not have a
fulfilled.’’ 6 Congress intended the joint proposed to be amended to better significant economic impact on a
employer doctrine to serve as a vehicle delineate the appropriate analysis of the substantial number of small entities.
for protecting agricultural employees employment and joint employment The Department has certified to this
‘‘by fixing the responsibility on those relationships using ‘‘economic
effect to the Chief Counsel for Advocacy
who ultimately benefit from their dependence’’ as the touchstone, as
of the Small Business Administration.
labors—the agricultural employer.’’ 7 In contemplated by Congress when MSPA
was enacted. The proposed regulation The proposed rule contains language
declaring this purpose, Congress cited which is intended to clarify what is
with approval the joint employment also addresses the crucial, initial issue
of whether a farm labor contractor (FLC) meant by the terms employ, employer,
analysis utilized by the Court of employment, and joint employment
is a bona fide independent contractor or
Appeals in Griffin & Brand; thus, that under MSPA.
an employee of the agricultural
decision should be the benchmark for
association or agricultural employer; Document Preparation
the analysis in the agricultural setting.8
where an FLC is actually an employee
The multi-factor test, as stated in Griffin
of the agricultural employer or This document was prepared under
& Brand, is largely the same as the
association, any worker employed by the direction and control of Maria
Supreme Court’s seminal decision in
the FLC is necessarily also an employee Echaveste, Administrator, Wage and
Rutherford Food, although the Court of
of the FLC’s employer. The proposed Hour Division, Employment Standards
Appeals restated some factors to
regulation more clearly enunciates the Administration, U.S. Department of
comport more fully and realistically proper test for joint employment, as
with the unique characteristics of an Labor.
prescribed in the legislative history and
agricultural operation. set forth in the case law that has List of Subjects in 29 CFR Part 500
The current MSPA regulation,
properly focused on economic reality
promulgated in 1983, sets out a non- Agricultural employers, Agricultural
and economic dependence. Further, the
exclusive list of factors which could associations, Agricultural worker,
regulation will provide needed guidance
appropriately be considered in the joint Employ, Employee, Employer, Farm
on ‘‘control,’’ clarifying that the inquiry
employment analysis. 29 CFR labor contractor, Independent
is as to the putative employer’s power
500.20(h)(4)(ii). The regulation states Contractor, Joint Employment, Migrant
or right to exercise authority in the
5 Griffin
workplace, either directly or indirectly; agricultural workers, Migrant labor,
& Brand, supra.
6 H. Rep. No. 97–885, 97th Cong. 2d sess. pp. 6–
the actual exercise of such power or Seasonal agricultural workers.
7 [‘‘Rept.’’]. authority is not necessary. The
7 128 Cong. Rec. H26008 (Sept. 1982). regulation would be further clarified, in
8 Rept. 7. that the illustrative list of factors
14038 Federal Register / Vol. 61, No. 62 / Friday, March 29, 1996 / Proposed Rules

Signed at Washington, D.C., on this 26th (i) The nature and degree of the under MSPA be the formulation as set
day of March, 1996. putative employer’s control as to the forth in Hodgson v. Griffin & Brand of
John R. Fraser, manner in which the work is performed; McAllen, Inc. 471 F.2d 235 (5th Cir.),
Deputy Administrator, Wage and Hour (ii) The putative employee’s cert. denied, 414 U.S. 819 (1973) (Rept.
Division. opportunity for profit or loss depending at 7). In endorsing Griffin & Brand,
For the reasons set forth above, 29 upon his managerial skill; Congress stated that this formulation
(iii) The putative employee’s should be controlling in situations
CFR part 500 is proposed to be amended
investment in equipment or materials ‘‘where an agricultural employer . . .
as set forth below:
required for the task, or the putative asserts that the agricultural workers in
PART 500—MIGRANT AND SEASONAL employee’s employment of other question are the sole employees of an
AGRICULTURAL WORKER workers; independent contractor/crewleader,’’
PROTECTION (iv) Whether the services rendered by and that the ‘‘decision makes clear that
the putative employee requires special even if a farm labor contractor is found
1. The authority citation for Part 500 skill; to be a bona fide independent
is revised to read as follows: (v) The degree of permanency and contractor, . . . this status does not as
duration of the working relationship; a matter of law negate the possibility
Authority: Pub. L. 97–470, 96 Stat. 2583
(29 U.S.C. 1801–1872); Secretary’s Order No.
(vi) The extent to which the services that an agricultural employer may be a
6–84, 49 FR 32473. rendered by the putative employee are joint employer . . . of the harvest
an integral part of the putative workers’’ together with the farm labor
2. In § 500.20, paragraph (h)(4) is employer’s business. contractor. Further, regarding the joint
revised and paragraph (h)(5) is added to (5) The definition of the term employ employer doctrine and the Griffin &
read as follows: includes the joint employment Brand formulation, Congress stated that
principles applicable under the Fair ‘‘the absence of evidence on any of the
§ 500.20 Definitions.
Labor Standards Act. The term joint criteria listed does not preclude a
* * * * * employment means a condition in
(h) * * * finding that an agricultural association
which a single individual stands in the or agricultural employer was a joint
(4) The definition of the term employ relation of an employee to two or more employer along with the crewleader’’,
may include consideration of whether persons at the same time. A and that ‘‘it is expected that the special
or not an independent contractor or determination of whether the aspects of agricultural employment be
employment relationship exists under employment is to be considered joint kept in mind’’ when applying the tests
the Fair Labor Standards Act. Under employment depends upon all the facts and criteria set forth in the case law and
MSPA, questions will arise whether or in the particular case. If the facts legislative history (Rept. at 8).
not the farm labor contractor engaged by establish that two or more persons are (iii) In determining whether or not an
the agricultural employer/association is completely disassociated with respect to employment relationship exists between
a bona fide independent contractor or the employment of a particular the agricultural employer/association
an employee. Questions also arise employee, a joint employment situation and the agricultural worker, the ultimate
whether or not the worker is a bona fide does not exist. question to be determined is the
independent contractor or an employee (i) If it is determined that the farm economic reality—whether the worker
of the farm labor contractor and/or the labor contractor is an independent is so economically dependent upon the
agricultural employer/association. contractor, it still must be determined agricultural employer/association as to
These questions should be resolved in whether or not the employees of the be considered its employee, subject to
accordance with the factors set out farm labor contractor are also jointly MSPA protections.
below and the principles articulated by employed by the agricultural employer/ (iv) The factors set forth below are
the federal courts in Rutherford Food association. Joint employment under the analytical tools to be used in
Corp.v. McComb, 331 U.S. 722 (1947), Fair Labor Standards Act is joint determining the ultimate question of
Real v. Driscoll Strawberry Assoc., Inc., employment under the MSPA. Such economic dependency. The factors are
603 F.2d 748 (9th Cir. 1979), and Sec’y joint employment relationships, which not to be applied as a checklist. They
of Labor, U.S. Dept. of Labor v. are common in agriculture, have been are illustrative only and are not
Lauritzen, 835 F.2d 1529 (7th Cir. 1987). addressed both in the legislative history intended to be exhaustive; other factors
If it is determined that the farm labor and by the courts. may be considered, depending upon the
contractor is an employee of the (ii) The legislative history of the Act specific circumstances of the
agricultural employer/association, the (H. Rep. No. 97–885, 97th Cong., 2d relationship among the parties. No one
agricultural workers in the farm labor Sess., 1982) states that the legislative factor is critical to the analysis; nor
contractor’s crew who perform work for purpose in enacting MSPA was ‘‘to must a majority of the factors be found
the agricultural employer/association reverse the historical pattern of abuse for an employment relationship to exist.
are deemed to be employees of the and exploitation of migrant and Rather, how the factors are weighed
agricultural employer/association and seasonal farm workers . . .,’’ which depends upon all of the facts and
an inquiry into joint employment is not would only be accomplished by circumstances. Among the factors to be
necessary or appropriate. In determining ‘‘advanc[ing] . . . a completely new considered in determining whether or
if the worker or farm labor contractor is approach’’ (Rept. at 3). Congress’s not an employment relationship exists
an employee or an independent incorporation of the FLSA term employ are:
contractor, the ultimate question is the was undertaken with the deliberate (A) Whether the agricultural
economic reality of the relationship— intent of adopting the FLSA joint employer/association has the power,
whether there is economic dependence employer doctrine as the ‘‘central either alone or through control of the
upon the farm labor contractor or foundation’’ of MSPA and ‘‘the best farm labor contractor to direct, control,
agricultural employer/association, as means by which to insure that the or supervise the worker(s) or the work
appropriate. This determination is based purposes of this MSPA would be performed (such control may be either
upon an evaluation of all of the fulfilled’’ (Rept. at 6). Further, Congress direct or indirect, and may be either
circumstances, including the following: intended that the joint employer test exercised or unexercised, taking into
Federal Register / Vol. 61, No. 62 / Friday, March 29, 1996 / Proposed Rules 14039

account the nature of the work amendment consists of the revision of II. Description of the Proposed
performed); four sections and the addition of one Amendment
(B) Whether the agricultural section to Title 62 of the Illinois By letter dated March 4, 1996
employer/association has the power, Administrative Code (IAC) regulations (Administrative Record No. IL–1800),
either alone or in addition to another pertaining to self-bonding. The Illinois submitted a proposed
employer, directly or indirectly, to hire amendment is intended to revise the amendment to its program pursuant to
or fire, modify the employment Illinois program to be consistent with SMCRA. Illinois submitted the proposed
conditions, or determine the pay rates or the corresponding Federal regulations. amendment at its own initiative. Illinois
the methods of wage payment for the proposed to revise 62 IAC 1800.4,
worker(s); DATES: Written comments must be
received by 4 p.m., e.s.t., April 29, 1996. Department responsibilities; 62 IAC
(C) Whether the agricultural 1800.5, Definitions; 62 IAC 1800.11,
employer/association supplies housing, If requested, a public hearing on the
proposed amendment will be held on Requirement to file a bond; and 62 IAC
transportation, tools and equipment or 1800.12, Form of the performance bond.
materials required for the job; April 25, 1996. Requests to speak at the
hearing must be received by 4 p.m., Illinois also proposed to add 62 IAC
(D) The degree of permanency and
e.s.t. on April 15, 1995. 1800.23, Self-bonding.
duration of the relationship of the
parties, in the context of the agricultural ADDRESSES: Written comments and 1. 62 IAC 1800.4 Department
activity at issue; requests to speak at the hearing should Responsibilities
(E) The extent to which the services be mailed or hand delivered to Roger W. Illinois proposes to revise § 1800.4 by
rendered by the workers are repetitive, Calhoun, Director, Indianapolis Field adding new subsection (c) that
rote tasks requiring skills which are authorizes the acceptance of a self-bond
Office, at the address listed below.
acquired with relatively little training; if the permittee meets the requirements
(F) Whether the activities performed Copies of the Illinois program, the
of 62 IAC 1800.23. Existing subsections
by the worker are an integral part of the proposed amendment, a listing of any
(c) through (e) are proposed to be
overall business operation of the scheduled public hearings, and all
redesignated (d) through (f).
agricultural employer/association; written comments received in response
(G) Whether the work is performed on to this document will be available for 2. 62 IAC 1800.5 Definitions
the agricultural employer/association’s public review at the addresses listed Illinois proposes to revise § 1800.5 by
premises or on the premises owned or below during normal business hours, adding a definition for the term ‘‘self-
controlled by another business entity; Monday through Friday, excluding bonding’’ at new subsection (c) that
(H) Whether the agricultural holidays. Each requester may receive reads as follows:
employer/association undertakes one free copy of the proposed Self-bonding means an indemnity
responsibilities in relation to the worker amendment by contacting OSM’s agreement in a sum certain executed by
which are normally performed by Indianapolis Field Office. the applicant or by the applicant and
employers, such as maintaining payroll any corporate guarantor and made
records, preparing and/or issuing pay Roger W. Calhoun, Director,
Indianapolis Field Office, Office of payable to the Department, with or
checks, paying FICA taxes, providing without separate surety.
workers’ compensation insurance, or Surface Mining Reclamation and
providing field sanitation facilities; and Enforcement, Minton-Capehart 3. 62 IAC 1800.11 Requirement to File
(I) Other facts bearing on economic Federal Building, 575 North a Bond
dependency. Pennsylvania Street, Room 301, Illinois proposes to revise § 1800.11
Indianapolis, IN 46204, Telephone: by adding new subsection (e) that
* * * * *
(317) 226–6700. requires self-bonding for eligible
[FR Doc. 96–7818 Filed 3–28–96; 8:45 am]
BILLING CODE 4510–27–P
Illinois Department of Natural permittees be administered consistent
Resources, Office of Mines and with all applicable provisions of 62 IAC
Minerals, 524 South Second Street, 1800.1 through 1800.50.
DEPARTMENT OF THE INTERIOR Springfield, IL 62701–1787,
4. 62 1800.12 Form of the Performance
Telephone (217) 782–4970.
Bond
Office of Surface Mining Reclamation FOR FURTHER INFORMATION CONTACT:
and Enforcement Illinois proposes to revise § 1800.12
Roger W. Calhoun, Director, by adding new subsection (c) that
30 CFR Part 913 Indianapolis Field Office, Telephone: identifies a self-bond as form of
(317) 226–6700. performance bond allowed by the
[SPATS No. IL–092–FOR] Illinois program. Existing subsection (c)
SUPPLEMENTARY INFORMATION:
is proposed to be redesignated
Illinois Regulatory Program
I. Background on the Illinois Program subsection (d).
AGENCY: Office of Surface Mining
On June 1, 1982, the Secretary of the 5. 62 IAC 1800.23 Self-Bonding
Reclamation and Enforcement (OSM),
Interior. Interior conditionally approved the Illinois proposes to add new § 1800.23
ACTION: Proposed rule; public comment Illinois program. Background concerning its conditions for acceptance
period and opportunity for public information on the Illinois program, of a self-bond. At subsection (a), Illinois
hearing. including the Secretary’s findings, the defines the terms to be used in the
disposition of comments, and the section: ‘‘current assets’’; ‘‘current
SUMMARY: OSM is announcing receipt of conditions of approval can be found in liabilities’’; ‘‘fixed assets’’; ‘‘liabilities’’;
a proposed amendment to the Illinois the June 1, 1982, Federal Register (47 ‘‘net worth’’; ‘‘parent corporation’’; and
regulatory program (hereinafter the FR 23883). Subsequent actions ‘‘tangible net worth.’’ At subsection (b),
‘‘Illinois program’’) under the Surface concerning the conditions of approval Illinois specifies the conditions that
Mining Control and Reclamation Act of and program amendments can be found must be met before a self-bond would be
1977 (SMCRA). The proposed at 30 CFR 913.15, 913.16, and 913.17. accepted from the applicant. At

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