[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24858-24866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12261]
[[Page 24857]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Employment Standards Administration
Wage and Hour Division
_______________________________________________________________________
29 CFR Part 500
Migrant and Seasonal Agricultural Worker Protection Act; Final Rule
Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Rules
and Regulations
[[Page 24858]]
DEPARTMENT OF LABOR
Employment Standards Administration
Wage and Hour Division
29 CFR Part 500
RIN 1215-AA93
Migrant and Seasonal Agricultural Worker Protection Act
AGENCY: Wage and Hour Division, Employment Standards Administration,
Labor.
ACTION: Final rule.
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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
