Migrant and Seasonal Agricultural Worker Protection Act

SUMMARY: This document amends the regulations under the Migrant and

Seasonal Agricultural Worker Protection Act (MSPA) to implement

statutory changes to MSPA concerning the relationship between workers'

compensation benefits and the benefits available under the MSPA. The

statutory amendments to MSPA specifically require changes in the MSPA

regulations concerning disclosure of workers' compensation information

and additionally require reconsideration of the MSPA-required

transportation liability insurance. This document also amends existing

regulations to provide for expedited proceedings before an

Administrative Law Judge (ALJ) on actions initiated by the

Administrator of the Wage and Hour Division to revoke, suspend, or

refuse to issue or renew a Farm Labor Contractor Certificate of

Registration, and for expedited review by the Secretary of Labor in

such cases. Lastly, this document amends the regulations to indicate

that the Certificate of Registration issued to farm labor contractors

will reflect the maximum number of farm workers authorized to be

transported.

EFFECTIVE DATES: The amendments to the authority citation for part 500

and to Secs. 500.48, 500.121, and 500.122 are effective on May 16,

1996. See: Dates of Applicability below. The amendments to

Secs. 500.224, 500.262, and 500.268 are effective on July 15, 1996. The

amendments to Secs. 500.75 and 500.76 are effective on August 14, 1996.

FOR FURTHER INFORMATION CONTACT: Michael Hancock, Office of Enforcement

Policy, Farm Labor Team, Wage and Hour Division, Employment Standards

Administration, U.S. Department of Labor, Room S-3510, 200 Constitution

Avenue, NW., Washington, DC 20210; telephone (202) 219-7605. This is

not a toll-free number. Copies of this Final Rule in alternative

formats may be obtained by calling (202) 219-7605, (202) 219-4634

(TDD). The alternative formats available are large print, electronic

file on computer disk and audio-tape.

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act of 1995

The paperwork requirements contained in the proposed regulations

were submitted for review to the Office of Management and Budget

pursuant to section 3507(d) of the Paperwork Reduction Act of 1995. OMB

has approved these requirements under OMB No. 1215-0187 through April

30, 1999.

Title: Worker Information, Form WH-516.

Summary: This Final Rule amends sections 500.75 and 500.76 of

Regulations, 29 CFR Part 500, to require disclosure to migrant and

seasonal agricultural workers of certain information regarding the

availability of workers' compensation insurance.

Need: Various sections of the Migrant and Seasonal Agricultural

Worker Protection Act (MSPA), 29 U.S.C. 1801 et seq., require that each

farm labor contractor, agricultural employer and agricultural

association disclose in writing the terms and conditions of employment

to: (a) migrant agricultural workers at the time of recruitment

(section 201(a)(1)); (b) seasonal agricultural workers, upon request,

at the time of employment (section 301(a)(1)); and (c) seasonal

agricultural workers employed through a day-haul operation at the place

of recruitment (section 301(a)(2)). Sections 201(b) and 301(b), which

relate to posting in a conspicuous place at the place of employment a

poster provided by the Secretary setting forth the rights and

protections afforded covered workers under MSPA, also require that each

such employer provide to each worker (upon request in the case of

seasonal agricultural workers) a written statement of the terms and

conditions of employment. In addition, sections 201(g) and 301(f)

require that such information be provided in English, or as necessary

and reasonable, in a language common to the workers, and that the U.S.

Department of Labor (DOL) make forms available to provide such

information. Optional Form WH-516, Worker Information, is made

available by DOL for these purposes. As an alternative to use of the

Form WH-516, employers may disclose the terms and conditions of

employment in writing to migrant workers (or upon request to seasonal

workers), using any other format provided the required information is

contained within the disclosure.

Pub. L. 104-49 provides in section 4 for the disclosure to the

employee of certain additional information regarding workers'

compensation insurance, i.e., whether workers' compensation is provided

and if so, the name of the workers' compensation insurance carrier, the

name of the policyholder of such insurance, the name and the telephone

number of each person who must be notified of an injury or death, and

the time period within which this notice must be given. Optional Form

WH-516 has been revised to include this new statutorily-required

information. The workers' compensation disclosure requirement can

alternatively be met by the employer furnishing the worker with a

photocopy of any notice regarding workers' compensation insurance

required by law of the State in which such worker is employed. It is

important to note that the information on the terms and conditions of

employment required to be disclosed (including the workers'

compensation information) is to be disclosed to prospective employees.

Outside of an investigation context in which the employer is

specifically requested to provide a copy of any written disclosure made

to workers, this information is not to be forwarded to, nor will it be

maintained by, the Federal government.

The public was invited to provide comments regarding estimates of

the burden of the collection of information, the information collection

requirements, and the disclosure requirements during the comment period

for the Notice of Proposed Rulemaking (NPRM) published in the Federal

Register on Monday, March 18, 1996 (see 61 Federal Register No. 53, Pg.

10911-10918). The comment period for the NPRM ended on Wednesday, April

17, 1996. Comments were received concerning meeting the workers'

compensation disclosure requirement by providing a copy of any State-

mandated disclosure only if it included all the information required by

the optional DOL form. In response to these comments, this limitation

has been deleted from the final rule as discussed below in connection

with Secs. 570.75 and 570.76. The change does not, however, affect the

burden estimates.

II. Background

Public Law 104-49 amends the Migrant and Seasonal Agricultural

Worker Protection Act (MSPA) provisions dealing with the private right

of action, the regulatory process for setting minimum transportation

liability insurance requirements, and disclosure obligations to

agricultural workers. The

[[Page 24859]]

Act requires the Secretary to reexamine the current MSPA transportation

insurance regulations and to amend the regulations governing

disclosure. The insurance rulemaking must be completed and a final rule

published within 180 days of enactment, or no later than May 13, 1996.

The disclosure regulations, while under no statutory deadline, provide

important new information to agricultural workers and require

regulations before they become effective. In addition, the Department

has determined that it is necessary to modify Form WH-511 (Farm Labor

Contractor Certificate of Registration) to reflect the seating capacity

of any vehicle(s) authorized for use in transporting covered workers

(this modification will result in no additional burden or data

collection as the information is already collected on Form WH-510--the

Application for a Farm Labor Contractor Certificate of Registration).

The final regulation gives adjudication priority to administrative

actions denying, revoking, or suspending a farm labor contractor (FLC)

certificate. Currently, some FLCs continue to lawfully operate for

extended periods awaiting an administrative hearing and final order on

a certification action. This amended regulation establishes deadlines

for Administrative Law Judge and Secretarial review proceedings in MSPA

certificate actions.

The Department of Labor published a Notice of Proposed Rulemaking

in the Federal Register on March 18, 1996 (61 FR 10911-10918). The

public comment period on the proposed regulatory changes closed on

April 17, 1996.

III. Analysis of Comments

A. Comments to the Proposed Rule

Comments to the Notice of Proposed Rulemaking (NPRM) were received

from 27 organizations and individuals, representing the views of 69

organizations, public officials and individuals. Comments were received

from five growers, 12 agricultural associations (with three

organizations endorsing other's comments as well), two Congressional

letters on behalf of five Members of the U.S. House of Representatives,

four farmworker organizations (on behalf of 39 organizations and

individuals), two attorneys who have represented farmworkers injured in

traffic accidents, one individual, one insurance trade association, and

one State government agency.

The comments were primarily focused on three subjects: disclosure

of the terms and conditions of workers' compensation by providing

farmworkers with a photocopy of the State-mandated notice; the minimum

amount of vehicle liability insurance required under MSPA; and further

elaboration on the meaning of ``actual costs'' in determining whether

or not a ``carpool'' is subject to MSPA transportation and/or

registration obligations.

B. Summary of Comments

The comments submitted by two growers expressed displeasure with

any insurance obligation under MSPA. Three expressed the view that

insurance should be lowered from the current levels.

The comments submitted by most of the agricultural employer

associations raised certain common issues. First, these commenters

asserted that requiring the State-mandated workers' compensation notice

to contain all the information required in the MSPA disclosure was not

required by Pub. L. 104-49 and that the proposed regulations should be

changed to delete this provision. Second, these commenters contended

that DOL should retain the current MSPA insurance regulatory structure

of two classes of vehicles, those with seating capacities of 15 and

fewer and sixteen and more, and merely lower the minimum insurance

required for each vehicle category. The insurance trade association

echoed these views. Finally, most of the agricultural employer

associations and organizations suggested that the Department should

further explain the circumstances under which ``carpool'' arrangements

will be considered legitimate (therefore, outside the scope of MSPA

regulations) and when such arrangements will be considered not to be

carpools (therefore, within the scope of MSPA regulations).

In addition to these broad themes running through many of the

agricultural employer associations' comments, several commenters raised

insurance issues and suggested other changes. Florida Citrus Mutual

suggested a $10,000 to $25,000 per seat requirement because it would

more closely approximate insurance levels for privately-owned

noncommercial vehicles required under State laws. The California Grape

and Tree Fruit League recommended insurance minimums of either $100,000

per person/$300,000 per accident or $250,000 per person/$500,000 per

accident. The Nisei Farmers League recommended $300,000 to $500,000 for

vehicles transporting fewer than 14 workers and $500,000 to $1 million

for those transporting 15 or more workers. The New England Apple

Council recommended insurance coverage based on 6 different seating

capacity categories: $500,000 for up to 10 passengers; $600,000 for 11-

20; $700,000 for 21-30; $800,000 for 31-40; $900,000 for 41-50; and $1

million for 50 and above. The Florida Fruit and Vegetable Association

recommended $300,000 for vehicles transporting 12 or fewer, and

$500,000 for vehicles transporting more than 12.

Comments were submitted by four farmworker advocacy organizations

on behalf of a number of individuals and organizations, including labor

unions, State and county elected officials, religious service

organizations serving farmworkers, a college professor, a trial lawyer

organization, community organizations, and farmworker legal services

providers. These commenters were concerned that the disclosure of

workers' compensation information should be complete, timely and in a

language the workers can understand and that the minimum amount of

insurance necessary remain at the proposed $100,000 per seat in order

to insure against reasonably foreseeable risk. One farmworker advocate

sought clarification that transportation advances provided to a

farmworker would not subject the farm labor contractor, agricultural

employer or association providing the advance to the MSPA

transportation requirements. Two attorneys with experience representing

farmworkers involved in transportation accidents also commented in

favor of the Department's proposed insurance provisions.

Comments were also submitted by five Members of the U.S. House of

Representatives and one State agency, addressing three issues.

Regarding the Proposed Rule's provision that the state-mandated

workers' compensation poster would not satisfy MSPA disclosure

requirements if the poster lacked information specified in Pub. L. 104-

49, all five Members expressed the view that the proposal was contrary

to the statutory directive. Regarding the levels of vehicle liability

insurance prescribed in the Proposed Rule, two Members (the Honorable

Bill Goodling and Cass Ballenger) suggested that the Department should

either devise a different regulatory formula or set lower minimum

levels, and three Members (the Honorable Calvin M. Dooley, Gary A.

Condit and Vic Fazio) noted ``concerns that ICC insurance levels are

unnecessarily high for those in agriculture transporting workers'' and

urged that the MSPA regulation assure a balance between protection of

farmworkers and affordable insurance for transportation providers. All

five

[[Page 24860]]

Members requested further clarification regarding ``carpooling''. The

State agency (Virginia Department of Labor and Industry) expressed the

same views as the Members regarding the use of the state-mandated

workers' compensation poster and the desire for further ``carpooling''

guidance, and suggested a modification of the Proposed Rule's formula

for liability insurance levels.

As further explained below, the Final Rule has been revised to

incorporate some of the suggestions received from the comments. First,

the Rule on workers' compensation disclosure will make it clear that

the State-mandated notice used by the employer does not have to include

all the MSPA-specified information; the Rule will further provide that

if the state workers' compensation law mandates that supplemental

information be provided to the worker in the event of an injury, the

disclosure of such information is required for the employer's continued

compliance with the MSPA regulation. Second, the liability insurance

regulation will cap insurance requirements at $5 million regardless of

the seating capacity of the insured vehicle. Therefore, no transporter

will be required to purchase more insurance than under the current

regulation and most will be required to purchase less.

C. Workers' Compensation Disclosure Requirements

The MSPA was amended by Pub. L. 104-49 to require farm labor

contractors, agricultural employers and agricultural associations who

recruit or hire agricultural workers subject to the requirements of the

Act to provide the workers certain additional information about the

terms and conditions of workers' compensation coverage, if such

coverage is provided by the employer. This information must be in

written form, and that disclosure document must be given to each

agricultural worker to be retained in the event that the information

contained therein becomes useful or necessary.

Under current regulations, the information to be disclosed to

agricultural workers includes the place of employment, the period of

employment, wage rate(s), crops and activities, whether transportation

or other benefits are provided, housing and its cost (if provided),

information about any strike, work stoppage, slowdown, or interruption

in operations, and information about any employer charges for goods or

services provided by the employer. The disclosures required by MSPA,

including the new workers' compensation disclosure requirements under

Pub. L. 104-49, must be given to each migrant agricultural worker at

the time of recruitment. If the workers' compensation information

required to be disclosed is unavailable at the time of recruitment, it

must be disclosed to each worker at the earliest possible time that the

information becomes available - but in no event later than the

commencement of employment. Seasonal agricultural workers are entitled

to the same information in the same form upon request.

It is important to note that Pub. L. 104-49 does not alter the

requirement under MSPA that all other terms and conditions of

employment be disclosed to covered workers at the time of recruitment.

The provision added by Pub. L. 104-49 allowing an employer to delay

full disclosure of the required workers' compensation information until

it is available (but in no event later than the commencement of

employment), applies only to the disclosure of required workers'

compensation information.

Pub. L. 104-49 provides that migrant agricultural workers are

entitled to receive, in writing, the name of the workers' compensation

insurance carrier, the name of the policy holder of such insurance, the

name and telephone number of each person who must be notified of an

injury or death, and the time period within which such notice must be

given. Seasonal agricultural workers must also receive the same

workers' compensation information in writing if so requested by the

worker(s). This Final Rule amends Secs. 500.75 and 500.76 to include

these new statutorily-required disclosure items.

Pub. L. 104-49 provides that information concerning workers'

compensation may be given to the worker in one of two ways. The farm

labor contractor, agricultural employer, or agricultural association

may provide the specified information in writing. The March 18 NPRM

provided that this disclosure could be accomplished via the optional

written disclosure form (Optional Form WH-516) made available by the

Department. In the alternative, the farm labor contractor, agricultural

employer or agricultural association may communicate the necessary

workers' compensation information by giving the agricultural worker a

photocopy of any notice regarding workers' compensation insurance

required by the law of the State in which the worker is employed. To

remain consistent with the underlying intent for the disclosure

requirement, the Department included in its March 18 NPRM a proviso

that giving a copy of a State-required workers' compensation form (or

notice) to covered workers would be deemed to satisfy the disclosure

requirement so long as the copy contains all of the workers'

compensation information that must be disclosed.

During the comment period for the NPRM, five Members of Congress

(the Honorable Bill Goodling, Cass Ballenger, Calvin Dooley, Gary

Condit, and Vic Fazio), the Chairman of the Commonwealth of Virginia's

Interagency Migrant Worker Policy Committee (Theron J. Bell), the

American Insurance Association, and eleven grower associations

expressed concerns about the proposed regulation which would recognize

compliance with the workers' compensation disclosure requirement by

providing the worker a copy of a State-mandated workers' compensation

poster only if the poster contains the same workers' compensation

information specified in Pub. L. 104-49. These commenters took the

position that the proposed regulation was too restrictive, that it was

contrary to the language of Pub. L. 104-49 regarding the use of State-

mandated posters, and that it should provide employers more flexibility

relative to the disclosure of workers' compensation information.

Four worker advocacy groups writing on their own and on behalf of

thirty-five other worker assistance and advocacy groups, supported the

Department's proposal in the NPRM regarding the workers' compensation

information disclosure requirements.

After careful consideration of the comments received on the NPRM,

the Department has determined that the plain language of the statute

(Pub. L. 104-49) does not require that a State-mandated workers'

compensation notice must contain information not already required by

the State workers' compensation law. Accordingly, the NPRM proposal

that would have allowed the State-mandated notice to be used only if it

contained all of the information specified in Pub. L. 104-49 has been

deleted in the Final Rule. However, it should be noted that although

initial compliance with MSPA disclosure requirements can be met by

providing the State-mandated notice, many State workers' compensation

laws require additional disclosures to the worker if an injury occurs.

If an employer chooses to comply with the MSPA workers' compensation

disclosure obligations by providing the State-mandated notice but these

state-mandated supplemental disclosures are not made to a worker, the

failure to do so would constitute a failure to meet the workers'

compensation disclosure requirements. In such cases, in order to

[[Page 24861]]

remain in compliance with the MSPA disclosure requirements in the event

of an accident or some other event that would trigger the applicability

of workers' compensation, the State-mandated additional disclosures

must be made by the employer. It is the Department's view that this

interpretation imposes no new Federal requirements--rather, it provides

employers subject to the State's workers' compensation law(s) with an

added incentive to make full and accurate disclosures of the

information necessary in order for the worker to properly file a claim

for workers' compensation in the event of a covered injury or illness.

D. Transportation Insurance Under MSPA

Under the MSPA, agricultural employers, agricultural associations,

and farm labor contractors who use or cause to be used a vehicle to

transport agricultural workers subject to the Act must comply with

certain minimum transportation safety requirements and provide a

minimum level of financial security to insure against liability for

damage to persons or property of workers or third parties. Pub. L. 104-

49 amended the MSPA provision regarding the determination of the level

of financial security to be required.

MSPA provides three means by which farm labor contractors,

agricultural employers, or agricultural associations may insure against

liability for damage to persons or property arising from the ownership,

operation or causing to be operated a vehicle used to transport

agricultural workers. The security may be in the form of (1) a vehicle

liability insurance policy that insures employees and nonemployees; (2)

a workers' compensation policy along with a certificate of liability

insurance covering transportation whenever nonemployees and employees

may be transported under circumstances not covered by workers'

compensation; or (3) the posting of a $500,000 liability bond. Pub. L.

104-49 required the Secretary to re-examine the previous minimum

liability insurance requirement and make any changes indicated by May

13, 1996.

While the Final Rule modifies only the minimum liability insurance

levels per occurrence for such transportation, this discussion responds

to commenters' concerns for clarification regarding the obligations

under MSPA if a farm labor contractor, agricultural employer, or

agricultural association chooses workers' compensation as the primary

transportation insurance coverage for the agricultural workers being

transported. Further, in response to commenters and to the legislative

history of Pub. L. 104-49, which indicates a need to reaffirm and

further explain the circumstances under which carpooling arrangements

among workers fall outside of the scope of MSPA (Joint Statement of

Legislative Intention, Rep. William F. Goodling, E1943, Cong. Rec.,

Oct. 13, 1995), this discussion provides needed clarification on these

issues.

1. Workers' Compensation as Primary Transportation Insurance

Workers' compensation coverage is a partial alternative to meeting

transportation liability obligations under MSPA and the Department's

regulations. However, workers' compensation coverage alone does not

completely satisfy the legal obligations under MSPA. The regulations

also require that if an employer chooses workers' compensation as the

primary coverage, additional liability insurance in a specified minimum

amount must also be provided to compensate employees and nonemployees

for property damage and bodily injuries not covered by workers'

compensation benefits whenever there is a possibility that workers may

be transported under circumstances not covered by workers' compensation

insurance. Employers who are certain that the transportation will occur

only under circumstances covered by workers' compensation are not

obligated to secure additional bodily injury coverage but they do so at

their own risk. In such circumstances, the employer would be in

violation of the MSPA insurance obligations if they transport workers

outside the scope of workers' compensation coverage, and would be

exposed to suits for actual damages. The regulation at 29 CFR

500.122(c)(2) has required this supplemental coverage since MSPA was

enacted and nothing in this Final Rule is intended to alter this

obligation.

2. Transportation Under MSPA and Carpools

As stated previously, the legislative history of Pub. L. 104-49

indicated a need to reaffirm and clarify what constitutes a legitimate

carpool arrangement among workers, which would be beyond the scope of

the MSPA transportation requirements (including minimum insurance

obligations).

Carpooling is described in the regulation at Sec. 500.100(c). The

NPRM proposed no amendment to this regulation, and it remains unchanged

in this Final Rule. However, in the Preamble to the NPRM and in this

discussion, the Department has provided further guidance and

clarification.

Under the regulation, carpooling is a voluntary arrangement among

workers for transportation to and from work using a worker's own

vehicle. The workers may contribute to offset the costs of the

transportation to reasonably reflect the actual costs of the

transportation. Any compensation or other valuable consideration in

excess of the actual costs means the transportation provider is

considered a farm labor contractor and thereby subject to the

registration and transportation requirements of the Act and the

regulations. Likewise, any arrangement in which a farm labor contractor

participates will not be considered a carpool. If any agricultural

employer or association directs or requests such transportation

arrangements or provides money or other valuable consideration (other

than the travel advances discussed below) for the transportation

service, such an arrangement is not a carpooling arrangement among

workers.

Several commenters responding to the NPRM Preamble sought further

clarification of the circumstances under which a transportation

arrangement will be considered to be a ``carpool'' beyond the scope of

MSPA regulations or, on the other hand, when transportation will be

deemed not to be a ``carpool'' and therefore subject to MSPA

regulation.

A number of commenters raised questions about the scope of ``actual

costs'' for purposes of determining whether or not the transportation

arrangement is ``for any money or other valuable consideration paid or

promised to be paid,'' and therefore potentially subject to the farm

labor contractor provisions of the Act and regulations.

Some of the agricultural employer advocacy organizations expressed

the view that a transportation-providing worker operating the vehicle

should be entitled to receive remuneration from the passengers to

offset the cost of the transportation. Some stated that the worker

should be able to receive compensation for such transportation related

expenses as gas, oil, insurance, vehicle depreciation, wear on tires,

etc. and still be deemed to be a carpool. Others contended that if the

driver received no money from the farm labor contractor, agricultural

employer or agricultural association, the amount that was received from

the passengers should be of no legal consequence. One commenter

suggested that the driver should be able to accept from each passenger

whatever amount the passenger would pay for public transportation, if

public transportation were available.

[[Page 24862]]

Based in the language of MSPA itself, by definition, a farm labor

contractor is ``any person--other than an agricultural employer, an

agricultural association, or an employee of an agricultural employer or

agricultural association--who, for any money or other valuable

consideration paid or promised to be paid, performs any farm labor

contracting activity.'' 29 U.S.C.1802(7); 29 CFR 500.20(j).

Transporting any migrant or seasonal agricultural worker ``for any

money or other valuable consideration paid or promised to be paid''

thus constitutes performing a farm labor contracting activity. 29

U.S.C. 1802(6); 29 CFR 500.20(i). As stated above, the Department's

regulations recognize bona fide carpool arrangements among workers, and

exempt such arrangements from passengers, the driver must be able to

show how the charges were calculated and that the charges are

reasonable and directly related to the transportation provided to the

carpool. Guidance regarding making such showing may be found in the

regulations for the Fair Labor Standards Act provision allowing the

employer to claim wage credit for the ``reasonable cost'' of meals or

lodging furnished to employees, 29 CFR 531.3.

Another reasonable measure of actual costs is the reimbursement

rate for federal employees who use private automobiles for official

business. The federal government reimburses those employees at a rate

of 30 cents per mile to compensate for gas, wear and tear, and other

costs associated with the operation of the vehicle. If the operator of

a carpool multiplies the miles to and from the worksite by 30 cents and

charges each occupant of the vehicle a pro rata share of those costs,

those charges would be considered a sufficient approximation of

``actual costs'' to satisfy the carpooling regulations. (See 41 CFR

301-4; 59 FR 66626, Dec. 27, 1994. Transporters should note that the

amount of reimbursement changes periodically to reflect changes in

costs.)

Another issue raised by the commenters concerns employer

involvement in carpooling arrangements. A bona fide carpool is strictly

voluntary and is done for the convenience of the workers involved, not

at the direction of an FLC, agricultural employer or agricultural

association. An FLC, agricultural employer or agricultural association

may indicate to workers that there is no prohibition against carpooling

if any workers wish to make such arrangements, and may even encourage

workers to do so.

It was suggested by one agricultural association that encouraging

carpools is consistent with and perhaps even required by certain

pollution abatement laws and regulations. Nothing in the current

regulations nor in this discussion is intended to prevent agricultural

employers or associations from encouraging agricultural workers to

carpool in order to serve the laudable public policy goal of reducing

pollution. However, where the FLC, agricultural employer or

agricultural association organizes or helps to organize the carpool(s),

or makes carpooling a condition of employment, the activity is deemed

to be ``causing to be transported'' and requires compliance with MSPA.

All the commenters agreed with the Department's analysis of the

``raitero'' practice but some requested further clarification of the

employer's obligation, if any, when raiteros provide transportation.

Nothing in the carpool regulation nor in the discussion of raiteros in

the Preamble to the NPRM alters the test of employer responsibility for

transportation by third parties. Unless the agricultural employer or

association ``caused'' the transportation by the raiteros to occur, the

agricultural employer or association is not responsible for the

transportation.

Finally, a farmworker advocacy organization identified another

transportation-related practice that should be clarified. Where a farm

labor contractor, agricultural employer, or association provides the

worker a travel advance to cover travel expenses to the worksite, and

the worker is free to choose how to use that travel advance, the farm

labor contractor, agricultural employer, or agricultural association

will not be deemed to have ``caused'' the transportation used by the

worker and will not be subject to MSPA with regard to such

transportation.

3. Proposed Revision to the MSPA Minimum Transportation Liability

Insurance Regulation

Public Law 104-49 eliminated the MSPA requirement that the

liability insurance required by the Secretary in regulations must be at

least the amount required for the carriers of passengers under the

Interstate Commerce Act (hereinafter referred to as ICA). Instead, Pub.

L. 104-49 requires that the liability insurance amount is to be

determined by the Secretary through consideration of ``at least the

factors set out in [MSPA Sec. 401(b)(2)(B) regarding vehicle safety]

and similar farmworker transportation requirements under State law.''

Pub. L. 104-49 further requires the Secretary to establish insurance

levels under this law within 180 days of enactment (i.e., no later than

May 13, 1996).

The NPRM proposed to implement the insurance provisions of Pub. L.

104-49 by amending the MSPA minimum liability insurance regulations to

depart from the current ICA-based structure in favor of a more flexible

regulatory scheme. As explained in the Preamble to the NPRM, the

proposed amendment would eliminate the current vehicle capacity

categorization found in the ICA regulations (which may well relate to

general interstate passenger transportation patterns) while at the same

time ensuring adequate insurance levels to protect injured persons and

property when accidents occur. The proposal linked the required

insurance amount to the actual capacity of each vehicle, rather than

mandating one of two levels of insurance tied to vehicle capacity

categories of 15 and below or 16 and above. The proposal required that

the insurance be at least equal to $100,000 for each seat in a vehicle,

instead of the current flat requirement of $1.5 million and $5 million

for each vehicle category, respectively.

In developing the NPRM and this Final Rule, the Department adhered

to the requirements of Pub. L. 104-49. The Department carefully

considered the factors set out in MSPA Sec. 401(b)(2)(B). Additionally,

the Department searched for, but was unable to find, any similar

farmworker transportation requirements under State law; none were

identified by the commenters.

The overriding concern, as stated in Sec. 401(b)(2)(B) of MSPA, is

the protection of the health and safety of migrant and seasonal

agricultural workers. The legislative history of MSPA makes clear that

the requirements to provide safe vehicles and adequate levels of

vehicle insurance are key worker protections in the Act (Report of the

House Committee on Education and Labor, Rept. No. 97-885, 97th Cong.,

2d Sess.; 1982 U.S. Code Cong. and Ad. News 4547 (hereinafter referred

to as Report), at 4565). The House Education and Labor Committee Report

accompanying the original MSPA enactment noted that ``[t]he overriding

concern of the Secretary shall be the protection of the health and

safety of the workers.'' Id at 4565. The Committee also noted the ``* *

* often dangerous conditions under which agricultural workers are

transported.'' Id at 4566.

The statute directs that the Secretary should consider a number of

factors, including type and capacity of the vehicle and the extent to

which the

[[Page 24863]]

regulation will create an undue burden on the regulated community, in

determining both the substantive vehicle safety standards and the

required minimum insurance amounts. In the NPRM, the Department sought

ways to lessen the burden on the regulated community while still

maintaining adequate protection for workers. By departing from the

ICA's 15 and fewer and 16 and more seating capacity categories in favor

of a more flexible regulatory scheme, the proposal enables the

regulated community to structure its transportation practices without

regard to the arbitrary vehicle capacity distinction in the current

regulation, obtain insurance based on actual practices and

transportation needs, and in most cases, to realize a per vehicle

reduction in the minimum insurance required.

4. Data and Other Information Considered in NPRM and Final Rule

In developing the NPRM, the Department considered the reasonably

foreseeable risks to farmworkers from transportation accidents. As the

Preamble explained, the Department gathered information concerning the

incidence of fatalities and injuries, the damages resulting from such

injuries, and the likelihood that farmworkers would be made whole in

the absence of adequate insurance coverage. The Department also

considered whether or not the insurance could be made more flexible

and, consistent with the obligation to protect farmworkers, reduce the

level of required insurance.

The NPRM Preamble expressly requested information from the

commenters concerning certain factual matters that bear on the issues

of adequate insurance, transportation injuries to farmworkers, and

undue burden on the regulated community. Among the information

requested was specific information, with documentation, evidencing the

financial burden created by the insurance requirement; a comparison of

costs between the 1983 and 1992 insurance requirements; information

about individual accidents and the resulting damages; the extent to

which the 1992 minimum insurance requirement increases resulted in

transporters being unable to secure and/or afford insurance coverage;

and any similar State laws governing farmworker transportation. While

some commenters provided anecdotal information, and some commenters

gave general or conclusory information without the underlying

supporting data, most of the Department's requests for detailed

information received no response.

In commenting on the NPRM, the American Insurance Association

(hereinafter referred to as AIA) provided limited information about

average claims paid for accident years 1990 through April 1994. AIA

stated that the average claim paid for the 65 bodily injury claims

included in its data compilation for that period was $17,430. The AIA

comment did not disclose any underlying data, such as the range of

claims paid, the geographic scope of the data, whether or not the 65

referenced claims were the entirety of the accidents involving

agricultural workers, the circumstances of the accidents, and whether

or not the claims paid include all the damages in each incident or

merely the amount paid by an insurance carrier. The AIA summary

statement does suggest that the damages suffered by farmworkers in

accidents are extremely high when compared to average losses for other

occupational groups. Based on information which AIA provided to the

Department during the development of the Proposed Rule, the average

$17,430 claim for agricultural workers is approximately four times

higher than average claims paid for the next highest occupational

group, truck drivers, at $4,300 per claim paid.

AIA also provided summary information for ``a large group of risks

with severity characteristics similar to transporters of migrant

workers.'' AIA stated that its data show that, for the group surveyed,

the risk of loss greater than $500,000 is less than 0.3%. AIA did not

provide the underlying data which was summarized in this statement, and

did not describe or identify the ``large group'' or the ``severity

characteristics.'' It is therefore difficult to discern what is being

measured and whether or how the survey is relevant to the MSPA

liability insurance analysis. The Department made an informal request

to AIA for clarification of this information; apparently the survey

group are employees riding in van pools or other employer-provided

vehicles.

Farmworker advocates' comments also provided information concerning

risk of injury to farmworkers in transportation accidents and the

extent of damages when accidents occur. The comment from the Migrant

Farmworker Justice Project of Florida Legal Services included a chart

prepared by the Florida Department of Labor and Employment Security

listing accidents involving farm labor contractors from January 1,

1990, through March 1996. This chart shows that 59 accidents resulted

in 48 fatalities and 352 non-fatal injuries during this period. Also

included were media reports on farmworker accidents and an analysis of

agricultural accidents in Florida during 1990 by Prof. William J.

Becker of the University of Florida. According to that study, 38% of

the 39 agricultural work-related fatalities were the result of motor

vehicle accidents on public roads.

Finally, Florida Rural Legal Services also provided information

about specific recoveries for farmworkers represented by FRLS, and

excerpts from a data base showing settlements and verdicts awarded to

farmers in motor vehicle accidents. It is not clear to what extent the

information concerning farmers is comprehensive or selective. The

settlements/verdicts ranged from $843 to $6,000,000. The 59 cases

reported in the documents resulted in average settlements/verdicts of

$381,903.62.

The Department has carefully and fully considered the information

provided by the commenters in response to the requests in the NPRM. The

information concerning recoveries in specific cases involving

farmworkers and farmers, confirms the data previously compiled by the

Department concerning the extent of loss suffered in vehicular

accidents. The information provided by AIA was helpful but lacked the

detail or specificity to MSPA-regulated transportation practices to

persuade the Department to substantially change the insurance proposal.

5. Regulatory Structure and Minimum Level of Insurance

a. Delinking from the ICA vehicle capacity structure. A number of

commenters representing agricultural employers and one representing

insurance interests suggested that the Department erred in proposing to

delink the MSPA transportation insurance regulation from the ICA

structure that divides vehicles into two categories according to

seating capacity of 15 and fewer or 16 and more. It was suggested by

these commenters that the Department retain the ICA division and simply

lower the required minimum insurance amount for each vehicle class. The

American Insurance Association supported this position and further

asserted that abandoning the ICA structure would require the insurance

industry to change the process by which insurance companies write these

policies.

The farmworkers advocacy organizations, the two attorneys who have

represented farmworkers in transportation accident cases, and the

Pennsylvania Farm Bureau all commented favorably on the proposal to

delink from the ICA two-level structure

[[Page 24864]]

in favor of a structure based on individual vehicle seating capacity.

The farmworker advocacy organizations and the attorneys expressed the

view that the proposal struck an appropriate balance between creating

additional flexibility for the regulated community, reducing the

required minimum insurance amounts and associated costs, and ensuring

adequate levels of protection in the event of an accident.

The Pennsylvania Farm Bureau commented that the proposal was a

positive step in the ability of farmers and farm labor contractors to

control vehicle insurance cost, even if the savings may be modest. The

Bureau also requested clarification regarding the insurance

requirements for a transportation provider who operates a fleet of

vehicles. In response, the Department emphasizes that the Final Rule

establishes a minimum insurance requirement for each vehicle used to

transport farmworkers under MSPA. Therefore, each vehicle in a fleet

would have a separate requirement for minimum liability insurance

depending on the vehicle's seating capacity. For example, a six

passenger vehicle must be insured for $600,000, a 10 passenger vehicle

for $1 million, and a 25 passenger vehicle for $2.5 million. Even

though the aggregate requirement is $4.1 million, each vehicle is

insured individually, not at the $4.1 million aggregate amount. Under

the current two-level regulatory scheme, the same fleet of vehicles

would be required to be insured at an aggregate of $8 million.

After having carefully considered the comments, the Department has

concluded that the approach taken in the Proposed Rule delinking the

MSPA regulation from the ICA two-level structure is appropriate. The

legislation authorized the Department to reexamine this issue and to

depart from the ICA structure but did not change the fundamental

purpose of the MSPA transportation insurance requirement: to protect

the health and safety of agricultural workers. The Final Rule, which

sets the minimum liability amounts according to the actual seating

capacity of the vehicle being used, as was proposed, provides the

regulated community with additional flexibility to structure its

transportation practices according to its actual needs and lowers

insurance costs by eliminating the current regulation's mandate that

transporters purchase insurance above the level necessary to insure

against reasonable risk of harm. The Final Rule achieves the statutory

purpose of assuring the protection of health and safety of agricultural

workers by establishing levels of insurance on a per-seat standard

which would afford recovery for reasonably foreseeable risks.

It was suggested by AIA that changing from the ICA two-class

structure to a new structure, such as contained in the Proposed Rule,

will require insurance companies to change their underwriting and

information systems, thereby adding costs. AIA did not provide

information to support this assertion or to establish what the

additional costs would be. The Department therefore does not find this

to be a sufficient reason to reconsider the Proposed Rule.

b. The Minimum Level of Insurance. Agricultural employers,

agricultural employer advocates and the AIA suggested that the Proposed

Rule's minimum insurance requirement per seat be abandoned in favor of

a flat amount according to the class of vehicle, 15 passengers and

below or 16 and above. The overwhelming majority of these commenters

proposed $500,000 for the former and $1,000,000 for the latter. The

commenters asserted that these amounts of insurance are sufficient to

insure for damages suffered by farmworkers in transportation accidents

and would result in lower premiums for transportation providers.

The AIA asserted that Congress intended that the costs of insurance

be reduced. Other commenters echoed this assertion. However, neither

the legislative history nor Pub. L. 104-49 requires the Department to

issue a rule based on the sole consideration of the cost of insurance

to the regulated community. In fact, the legislation directs the

Department to consider the factors set out in MSPA Sec. 401(b)(2)(B)

concerning vehicle safety. That section of the Act makes clear that the

overriding purpose of MSPA transportation standards is the health and

safety of migrant and seasonal farmworkers, and further directs that,

in determining appropriate safety and insurance requirements, the

Department is to weigh any ``undue burden'' on transportation providers

as only one among several factors. In addition, it should be recognized

that, regardless of the regulatory structure adopted, it is not within

the Department's power to ensure the reduction of insurance premiums,

short of eliminating the insurance requirement entirely.

After thorough consideration of the comments, the Department has

concluded that the approach taken in the Proposed Rule is appropriate,

in that it provides adequate protection for agricultural workers while

lowering the minimum insurance levels (and presumably premium costs)

for most transportation providers. The Final Rule sets the minimum

amount of insurance not by arbitrary vehicle capacity divisions but by

the actual capacity (thus, actual risk of loss) of each insured

vehicle. A transporter using a six passenger vehicle would not be

required to purchase insurance in excess of its seating capacity.

Instead of the current regulation's $1.5 million (for vehicles with

capacities up to 15), only $600,000 in insurance would be required. The

operator of a 15 passenger vehicle has a risk exposure over twice that

of the 6 passenger vehicle, and would be required to have

proportionately higher insurance ($1,500,000). The insurance

requirements (and presumably the premium costs) reflect the difference

in risk exposure.

In light of available data as well as program experience regarding

the types of vehicles commonly used to transport agricultural workers,

the Department believes that the Final Rule will likely result in a

lower level of required insurance for the majority of transportation

providers. By way of illustration, under the current regulation, a

seven passenger vehicle would require $1.5 million in insurance; under

the Final Rule that same vehicle would require only $700,000 in

insurance. A 16 passenger bus currently must be insured at $5 million;

under the Proposed Rule, insurance would be lowered to $1.6 million. By

any reckoning, these examples show a significant reduction in required

insurance. It is beyond the scope of these regulations to mandate that

premiums for such insurance be reduced, but it would be logical to

expect that there would be a reduction in premiums as the amount of

insurance purchased is reduced.

Several commenters noted that the Proposed Rule would yield higher

insurance requirements for one class of vehicle, those with more than

50 seats. While vehicles with seating capacity in excess of 50 are not

common, it is not the Department's intention to increase the insurance

requirement in this rulemaking but rather to find reasonable, prudent,

and protective ways to reduce minimum requirements where possible.

Therefore, the Final Rule provides a cap of $5 million for required

insurance for any one vehicle. Thus, no vehicle will be required to

have increased levels of insurance and most vehicles could be insured

for less than under the current regulations.

In summary, therefore, the Department has concluded that the

available information--taken in its entirety and on balance--confirms

the proposal that $100,000 per seat is a reasonable measure of adequate

[[Page 24865]]

insurance in MSPA transportation cases. For the reasons stated above

and for the reasons previously discussed in the NPRM, the Department is

promulgating a Final Rule which is the same as the Proposed Rule except

for the addition of the $5 million cap on insurance.

E. Administrative Hearings on Denials, Suspensions, and Revocations of

Farm Labor Contractor Certificates

The NPRM proposed to establish expedited hearing and review

procedures for denial, suspension or revocation of farm labor

contractor certificates. All those who commented on this proposal,

including agricultural and farmworker advocacy organizations, favored

the proposal. The proposal will be adopted as a Final Rule without

change.

Executive Order 12866/Section 202 of the Unfunded Mandates Reform Act

of 1995

This Final Rule is not ``economically significant'' within the

meaning of Executive Order 12866, nor does it require a Sec. 202

statement under the Unfunded Mandates Reform Act of 1995. However,

because the rule provides initial regulations required to implement

provisions of Public Law 104-49 and may raise novel legal or policy

issues arising out of legal mandates, it was determined to be a

``significant regulatory action'' within the meaning of Sec. 3(f)(4) of

Executive Order 12866. The Final Rule addresses insurance and

disclosure obligations required under MSPA, as amended by Public Law

104-49. In addition, the rule revises the administrative proceedings

involving decisions to revoke, suspend, or refuse to issue or renew

Certificates of Registration under MSPA. No economic analysis is

required because the rule will not have a significant economic impact.

For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L.104-

4), as well as Executive Order 12875, this rule does not include any

Federal mandate that may result in increased expenditures of $100

million in any one year by State, local, and tribal governments, or by

the private sector.

Regulatory Flexibility Analysis

This Final Rule will not have a significant economic impact on a

substantial number of small entities. The rule amends current

regulations at 29 CFR Part 500 to bring the regulations into conformity

with the statutory changes made to MSPA by the enactment of Pub. L.

104-49. Additionally, the Final Rule amends Secs. 500.224, 500.262, and

500.268 of the current rule to provide for expedited administrative

proceedings in matters where the Administrator has initiated action to

revoke, suspend, or refuse to issue or renew a farm labor contractor's

Certificate of Registration (including Farm Labor Contractor Employee

Certificates).

The proposed rule is likely to result in reduced insurance premiums

for some and will not result in increases for any transporter covered

by MSPA. Further, the Department anticipates that the portion of the

regulated community which provides transportation, and thus would be

affected by the minimum insurance requirements, is not substantial in

number in any event. According to the Department's farm labor

contractor registration data, only 975 of all registered contractors

(less than 9% of the total), provide transportation to agricultural

workers. It is believed that a similarly small percentage of

agricultural employers and agricultural associations provide MSPA-

covered transportation. Furthermore, the MSPA exempts from its coverage

small agricultural employers and associations which do not use more

than 500 man-days of agricultural labor in a calendar quarter during

the preceding year. Therefore, many small agricultural employers are

exempt from MSPA coverage and will be unaffected by these regulations.

Therefore, this Final Rule is not expected to have a ``significant

economic impact on a substantial number of small entities'' within the

meaning of the Regulatory Flexibility Act, and the Department has

certified to this effect to the Chief Counsel for Advocacy of the Small

Business Administration. Accordingly, a regulatory flexibility analysis

is not required.

Dates of Applicability

The Secretary has determined that the public interest requires an

immediate effective date for the regulations on liability insurance, in

order to comply with the requirement of Public Law 104-49 directing

that regulations establishing insurance levels under Sec. 401(b)(3) of

the MSPA (29 U.S.C. 1841(b)(3)) be promulgated within 180 days of the

date of enactment of Public Law 104-49. Accordingly, the Secretary for

good cause finds pursuant 5 U.S.C. Sec. 553(d)(3), that this rule

amending Secs. 500.48, 500.121 and 500.122 of the regulation must be

effective upon publication rather than thirty days thereafter.

Document Preparation

This document was prepared under the direction and control of Maria

Echaveste, Administrator, Wage and Hour Division, Employment Standards

Administration, U.S. Department of Labor.

List of Subjects in 29 CFR Part 500

Administrative practice and procedure, Agricultural associations,

Agricultural worker, Aliens, Carpooling, Day-Haul, Farmer, Farm labor

contractor, Health, Housing, Housing standards, Immigration, Insurance,

Investigation, Migrant agricultural workers, Migrant labor, Motor

carriers, Motor vehicle safety, Occupational safety and health,

Penalties, Reporting requirements, Seasonal agricultural workers,

Transportation, Wages, Manpower training programs, Labor, Safety.

Signed at Washington, D.C., on this 13th day of May, 1996.

John R. Fraser

Deputy Administrator, Wage and Hour Division.

For the reasons set forth above, 29 CFR part 500 is amended as set

forth below:

PART 500--MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION

1. The authority citation for Part 500 is revised to read as

follows:

Authority: Pub. L. 97-470, 96 Stat. 2583 (29 U.S.C. 1801-1872);

Secretary's Order No. 6-84, 49 FR 32473; Sec. 210A(f), Pub. L. 99-

603, 100 Stat. 3359 (8 U.S.C. 1161(f)); and Pub. L. No. 104-49, 109

Stat. 432 (29 U.S.C. 1821, 1831 and 1841).

2. Section 500.48 is amended by revising paragraph (d) to read as

follows:

Sec. 500.48 Issuance of certificate.

* * * * *

(d) Authorize the activity of transporting a migrant or seasonal

agricultural worker, subject to the maximum number of workers

authorized to be transported under the vehicle liability policy and as

indicated on the face of the Certificate of Registration, only upon

receipt of:

(1) A statement in the manner prescribed by the Secretary

identifying each vehicle to be used, or caused to be used, by the

applicant for the transportation of any migrant or seasonal

agricultural worker during the period for which registration is sought;

(2) written proof that every such vehicle which is under the

applicant's ownership or control, is in compliance

[[Page 24866]]

with the vehicle safety requirements of the Act and these regulations;

and

(3) written proof that every such vehicle is in compliance with the

insurance requirements of the Act and these regulations;

* * * * *

3. In Sec. 500.75, paragraph (b)(6) is revised to read as follows:

Sec. 500.75 Disclosure of information.

(b) * * *

(6) Whether state workers' compensation or state unemployment

insurance is provided:

(i) If workers' compensation is provided, the required disclosure

must include the name of the workers' compensation insurance carrier,

the name(s) of the policyholder(s), the name and telephone number of

each person who must be notified of an injury or death, and the time

period within which such notice must be given.

(ii) The information requirement in paragraph (b)(6)(i) of this

section may be satisfied by giving the worker a photocopy of any

workers' compensation notice required by State law;.

* * * * *

4. In Sec. 500.76, paragraph (b)(6) is revised to read as follows:

Sec. 500.76 Disclosure of information.

* * * * *

(b) * * *

(6) Whether state workers' compensation or state unemployment

insurance is provided:

(i) If workers' compensation is provided, the required disclosure

must include the name of the workers' compensation insurance carrier,

the name(s) of the policyholder(s), the name and telephone number of

each person who must be notified of an injury or death, and the time

period within which such notice must be given.

(ii) The information requirement in paragraph (b)(6)(i) of this

section may satisfied giving the worker a photocopy of any workers'

compensation notice required by State law;

* * * * *

5. Section 500.121 is amended by revising paragraphs (a) and (b) to

read as follows:

Sec. 500.121 Coverage and level of insurance required.

(a) Except where a liability bond pursuant to Sec. 500.124 of this

part has been approved by the Secretary, a farm labor contractor,

agricultural employer or agricultural association shall, in order to

meet the insurance requirements in Sec. 500.120, obtain a policy of

vehicle liability insurance.

(b) The amount of vehicle liability insurance shall not be less

than $100,000 for each seat in the vehicle, but in no event is the

total insurance required to be more than $5,000,000 for any one

vehicle. The number of seats in the vehicle shall be determined by

reference to Sec. 500.105(b)(3)(vi). See Sec. 500.122 regarding

insurance requirements where State workers' compensation coverage is

provided.

* * * * *

Sec. 500.122 [Amended]

6. Section 500.122 is amended by removing and reserving paragraph

(b), and revising paragraph (c) to read as follows:

* * * * *

(b) [Removed and Reserved]

(c) A farm labor contractor, agricultural employer or agricultural

association who is the employer of a migrant or seasonal agricultural

worker may evidence the issuance of workers' compensation insurance and

passenger insurance under paragraph (a) of this section by obtaining

and making available upon request to the Department of Labor:

(1) A workers' compensation coverage policy of insurance; and

(2) A certificate of liability insurance covering transportation of

all passengers who are not employees and of workers whose

transportation by the employer is not covered by workers' compensation

insurance. See Sec. 500.121.

* * * * *

7. Section 500.224 is amended by redesignating paragraph (b) as

paragraph (c), revising paragraph (c), and adding a new paragraph (b)

to read as follows:

Sec. 500.224 Referral to Administrative Law Judge.

* * * * *

(b) In cases involving a denial, suspension, or revocation of a

Certificate of Registration (Farm Labor Contractor Certificate; Farm

Labor Contractor Employee Certificate) or ``certificate action,''

including those cases where the farm labor contractor has requested a

hearing on civil money penalty(ies) as well as on the certificate

action, the date of the hearing shall be not more than sixty (60) days

from the date on which the Order of Reference is filed. No request for

postponement shall be granted except for compelling reasons.

(c) A copy of the Order of Reference, together with a copy of these

regulations, shall be served by counsel for the Secretary upon the

person requesting the hearing, in the manner provided in 29 CFR 18.3.

8. Section 500.262 is amended by redesignating paragraphs (b), (c),

(d), (e), (f), and (g) as (c), (d), (e), (f), (g), and (h)

respectively, and adding a new paragraph (b) to read as follows:

Sec. 500.262 Decision and order of Administrative Law Judge.

* * * * *

(b) In cases involving certificate actions as described in

Sec. 500.224(b), the Administrative Law Judge shall issue a decision

within ninety (90) calendar days after the close of the hearing.

* * * * *

9. Section 500.268 is amended by revising paragraph (a) to read as

follows:

Sec. 500.268 Final decision of the Secretary.

(a) The Secretary's final Decision and Order shall be issued within

120 days from the notice of intent granting the petition, except that

in cases involving the review of an Administrative Law Judge decision

in a certificate action as described in Sec. 500.224(b), the

Secretary's final decision shall be issued within ninety (90) days from

the date such notice. The Secretary's Decision and Order shall be

served upon all parties and the Chief Administrative Law Judge, in

person or by certified mail.

* * * * *

[FR Doc. 96-12261 Filed 5-15-96; 8:45 am]

BILLING CODE 4510-27-P