[Federal Register Volume 73, Number 157 (Wednesday, August 13, 2008)]
[Rules and Regulations]
[Pages 47046-47057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-18497]
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DEPARTMENT OF LABOR
Office of Labor-Management Standards
29 CFR Part 215
RIN 1215-AB58
Amendment to Guidelines for Processing Applications for
Assistance To Conform to Sections 3013(h) and 3031 of the Safe,
Accountable, Flexible, and Efficient Transportation Equity Act--A
Legacy for Users and To Improve Processing for Administrative
Efficiency
AGENCY: Office of Labor-Management Standards, Department of Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor (``Department''), through the Office
of Labor-Management Standards (``OLMS''), issued proposed changes to
its Guidelines for the Department's administration of the Secretary of
Labor's (``Secretary'') responsibility under the Federal transit law,
49 U.S.C. 5333(b). This document sets forth the Department's review of
and response to comments on the proposed revisions, as well as the
changes made to the Guidelines in response to those comments.
Pursuant to section 5333(b) of the Federal transit law, the
Department must certify that, as a condition of certain grants of
Federal financial assistance, fair and equitable labor protective
provisions are in place to protect the interests of employees affected
by such Federal assistance. The Department administers this program
through Guidelines set forth at 29 CFR Part 215. The Department's
proposed changes are intended to conform the Guidelines to amendments
to the Federal transit law made by sections 3013(h) and 3031 of the
Safe, Accountable, Flexible, and Efficient Transportation Equity Act--A
Legacy for Users (``SAFETEA-LU''), Public Law No. 109-59, 119 Stat.
1144 (2005). In addition to changes mandated by statute, the Department
proposed revisions to the Guidelines that are intended to enhance the
speed and
[[Page 47047]]
efficiency of the Department's processing of grant certifications. The
revisions to existing procedures for processing grant applications
under the Federal transit law are intended to ensure timely
certifications in a predictable manner, while remaining consistent with
the transit law's objectives. The Department invited written comments
on the proposed revisions from members of the public.
EFFECTIVE DATE: This rule is effective October 1, 2008.
FOR FURTHER INFORMATION CONTACT: Ann Comer, Chief, Division of
Statutory Programs, Office of Labor-Management Standards, U.S.
Department of Labor, 200 Constitution Avenue, NW., Room N-5112,
Washington, DC 20210, [email protected], (202) 693-0126.
SUPPLEMENTARY INFORMATION:
I. Background
On September 14, 2007, the Department, through OLMS, issued
proposed revisions to the Guidelines it employs to administer the
Department's program under 49 U.S.C. 5333(b), which requires the
Secretary to certify that labor protections are in place for employees
who may be affected by certain grants of Federal financial assistance.
See Amendment to Guidelines for Processing Applications for Assistance
To Conform to Sections 3013(h) and 3031 of the Safe, Accountable,
Flexible, and Efficient Transportation Equity Act--A Legacy for Users
and To Improve Processing for Administrative Efficiency (``NPRM''), 72
FR 52521. The Department invited written comments on the proposed
revisions from interested parties. The written comment period closed on
October 15, 2007, and the Department has considered all timely comments
received in response to the proposed Guidelines revisions.
The Department received 10 timely comments in response to its
proposed revisions, including five comments from various labor
organizations (the Transportation Trades Department of the AFL-CIO; the
Amalgamated Transit Union; a joint submission from the United
Transportation Union and the Sheet Metal Workers International
Association; the Transportation Communications International Union, and
a joint submission by the American Train Dispatchers Association, the
Brotherhood of Locomotive Engineers and Trainmen/IBT, the Brotherhood
of Maintenance of Way Employees Division/IBT, the Brotherhood of
Railroad Signalmen, the International Brotherhood of Boilermakers and
Blacksmiths, the National Council of Firemen and Oilers/SEIU, the Sheet
Metal Workers International Association, and the Transport Workers
Union of America (rail division)); two comments from transit
associations (American Public Transportation Association and Taxicab,
Limousine & Paratransit Association); two public transit authorities
(the Texas Department of Transportation and the Regional Transportation
Commission of Southern Nevada); and one private consulting firm (Jim
Seal Consulting Services).
Under 49 U.S.C. 5333(b), when Federal funds are used to acquire,
improve, or operate a transit system, the Department must ensure that
the recipient of those funds establishes arrangements to protect the
rights of affected transit employees. Federal law requires such
arrangements to be ``fair and equitable,'' and the Department must
certify the arrangements before the U.S. Department of Transportation's
Federal Transit Administration (FTA) can award certain funds to
grantees. These employee protective arrangements must include
provisions that may be necessary for the preservation of rights,
privileges, and benefits under existing collective bargaining
agreements or otherwise; the continuation of collective bargaining
rights; the protection of individual employees against a worsening of
their positions related to employment; assurances of employment to
employees of acquired transportation systems; assurances of priority of
reemployment of employees whose employment is ended or who are laid
off; and paid training or retraining programs. 49 U.S.C. 5333(b)(2).
II. Summary of the Final Guidelines and Discussion of the Comments
The development of these Final Guidelines has included a careful
review of the public's timely comments. All timely comments received
are addressed in this Section. In those cases in which comments made
suggestions that, in the Department's view, improved or corrected the
proposed Guidelines, such changes have been incorporated. In some
cases, no change to the proposed language was deemed necessary.
A. Processing of Grant Applications To Replace Equipment or Facilities
of ``Like-kind''
In its NPRM, the Department proposed amending the guidelines to
conform to section 3031 of SAFETEA-LU, which added a new subparagraph
to section 5333(b) relating to grants for the purchase of ``like-kind''
equipment or facilities. As amended by SAFETEA-LU, section 5333(b)(4)
now requires that employee protective arrangements for grants
requesting assistance to purchase like-kind equipment or facilities be
certified by the Department without referral to the parties. The
current Guidelines, at section 215.3(b)(1), reflect this practice,
except that the current provision creates an exception to non-referral
if the Department determines that the grant application has a
``potentially material effect on employees.'' To conform the guidelines
to the statutory mandate, the proposed guidelines, at section
215.3(a)(4)(iii), provided that employee protections relating to grants
funding equipment and/or facilities of like-kind shall be certified
without a referral, and deleted the ``material effect'' exception.
Proposed Section 215.3(a)(4)(iii) also addressed the terms the
Department will apply in like-kind grant applications. That section
states that where ``application of the existing protective agreement(s)
or the Unified Protective Arrangement would not satisfy the
requirements of the statute in the circumstances presented, the
Department will make any necessary modifications to the existing
protections to ensure that the requirements of the statute are
satisfied.''
The Department received five comments regarding its proposed change
to its processing of grant applications to replace like-kind equipment
or facilities, and the comments addressed the following three issues:
Whether it is appropriate for the Department to eliminate its current
exception to its practice of non-referral of grant applications for
like-kind purchases in those cases in which the funding would result in
a ``potentially material effect on employees'' under the current
Section 215.3(b)(1); whether the Department appropriately included new
language in Section 215.3(a)(4)(iii) permitting it to make ``any
necessary modifications to the existing protections'' when certifying
grant applications for like-kind purchases; and whether the Department
will notify the labor organizations representing employees who may be
affected by grant applications for like-kind purchases that the
Department has received such an application but has made no referral.
Addressing the last issue first, the Department has included a
subsection in Section 215.3(a) to confirm its current practice that the
Department will ``notify labor organizations representing potentially
affected transit employees of the certification of grants without
referral under paragraph (a)(4) and
[[Page 47048]]
inform them of their rights under the applicable protective
arrangements.'' See Section 215.3(a)(5).
The Department has fully considered the first issue regarding the
deletion of the current exception to the practice of non-referral of
grant applications for like-kind purchases in those cases in which the
funding would result in a ``potentially material effect on employees,''
currently found at Section 215.3(b)(1). The amendments to 49 U.S.C.
5333(b) enacted by SAFETEA-LU incorporate the following provision into
the statute:
Fair and equitable arrangements to protect the interests of
employees utilized by the Secretary of Labor for assistance to
purchase like-kind equipment or facilities, and grant amendments
which do not materially revise or amend existing assistance
agreements, shall be certified without referral.
49 U.S.C. 5333(b)(4). The Department interprets this statutory
provision as permitting no exception for the referral of grants for
like-kind purchases in any case, and no comments provide a persuasive
reason for adopting a different interpretation. As a result, the
Department, as proposed, is deleting the provision in the current
guidelines permitting referral of grant applications for the purchase
of like-kind equipment in cases in which the purchase may have a
material effect on employees.
The remaining issue addressed by the comments dealing with the
Department's non-referral of grants for like-kind purchases is the
Department's proposal in Section 215.3(a)(4)(iii) to ``make any
necessary modifications to the existing [non-referred] protections to
ensure that the requirements of the statute are satisfied'' in those
cases in which application of the existing protective agreement(s) or
the Unified Protective Arrangement would not satisfy the requirements
of the statute. One comment in particular noted that where changes to
existing arrangements are ``deemed necessary [they] should be referred
to the parties for resolution or, at a minimum, such imposed changes
should be made without prejudice to any future objections or proposal
by the parties.'' Comment submitted by Transportation Communications
International Union in response to NPRM, October 15, 2007 (``TCU
Comment''), page 2.
With one modification, the Department will retain the proposed
language in Section 215.3(a)(4)(iii) to permit it to modify those non-
referred arrangements to comply with the statute in the event that
circumstances associated with a grant for a like-kind purchase indicate
that application of the current protective arrangement would no longer
satisfy the statute's requirements. Because referrals are not permitted
for like-kind grants, and situations may arise where the existing
protections are not statutorily sufficient, the Department must retain
the authority to unilaterally apply protections as an alternative to
referral. Situations that may give rise to the Department's need to
make a unilateral change to existing protections include a change to
the framework of state or local law, a court decision interpreting
existing protections, or where the Department's periodic review of an
agreement has disclosed that required protections are missing or
inadequate based on current policies and standards. This retention of
authority to unilaterally modify non-referred arrangements to ensure
statutory sufficiency is consistent with the Department's treatment of
other grant programs subject to non-referral, see, e.g. , 29 CFR
215.3(a)(4), 215.3(b)(3), and is necessary in order to ensure that the
Department certifies only those arrangements that are statutorily
sufficient. In some circumstances the Department will need to modify
protections to simultaneously ensure satisfaction of the statutory
requirements and to conform to the SAFETEA-LU requirement that
certification be made without referral. However, in response to
comments by labor organizations suggesting that the proposed language
was too broad and created uncertainty, the Department will delete the
word ``any,'' which may be broadly construed, from the proposed Section
215.3(a)(4)(iii) so that the final Guidelines limit the Department to
``make necessary modifications to the existing protections to ensure
that the requirements of the statute are satisfied.'' See Section
215.3(a)(4)(iii).
The Department agrees with the comment, noted above, suggesting
that imposed changes should be made without prejudice to any future
objections or proposals by the parties. Therefore, should the
Department determine unilaterally that changes are necessary to
arrangements applicable to a particular like-kind grant in order to
satisfy the requirements of the statute in the circumstances presented,
those changes will be made without prejudice to future objections or
proposals of either of the parties in response to subsequent referrals
for new grants. Accordingly, where subsequent referrals contain the
unilateral modifications made by the Department pursuant to Section
215.3(a)(4)(iii), parties to the referral may object at that time to
the proposed terms, including any terms that had been unilaterally
modified by the Department. This approach is consistent with the
Department's practice, in which it fully considers any objections to
referral terms, even when those terms have been previously imposed by
the Department. Where objections are deemed sufficient in subsequent
referred protections, the Department will require negotiations to
permit the parties to develop alternative employee protections for
application to the subsequently referred grant.
B. Processing of Amendatory Grant Applications
The Department has proposed amending section 215.5 of the
guidelines to conform to section 3031 of SAFETEA-LU, which provides
that ``grant amendments which do not materially amend existing
assistance agreements'' will not be subject to the Department's
referral procedures. See 49 U.S.C. 5333(b)(4). The proposed guidelines
were designed to reflect this statutory provision, and to clarify the
Department's treatment of grant amendments that, on the one hand,
result in material changes to existing assistance agreements and those
that, on the other hand, make only immaterial changes to such
agreements. The proposed revision also identified as examples some
types of grant amendments that would be certified without referral. As
set out below, in response to certain comments from the public, the
Department has made some revisions to proposed section 215.5.
As explained in the NPRM, the statutory change regarding
certification of grant amendments essentially codifies the Department's
current practice, and requires the Department to distinguish between
``material'' grant amendments that will be referred and ``immaterial''
grant amendments that will be certified without referral.\1\ In
[[Page 47049]]
making the distinction in the NPRM, the Department focused on what
constituted ``immaterial'' grant amendments, in large part because this
term already appears in the Guidelines, which establish that the
Department will certify ``immaterial'' grant revisions or amendments on
the basis of the previously certified terms without referral. See
current 29 CFR 215.5. In responding to the statute's now explicit
requirement that the Department refer only those grant amendments that
are ``material,'' and building on the presence of the term
``immaterial'' in the Guidelines text, the Department proposed in the
NPRM to add to the Guidelines several circumstances in which it
appeared that ``immaterial'' changes were present. For reasons
explained here, the Department has rejected this approach, and has
revised Section 215.5 accordingly.
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\1\ Under the Department's current practice, the FTA first
determines, pursuant to that agency's grant administration
authority, whether a proposed change or modification to an existing
assistance agreement (the contract of assistance) constitutes a
budget revision, an administrative amendment, or a grant amendment,
based on the FTA's own criteria it has established for such
categories. See FTA Circular C 5010.1C: Grant Management Guidelines,
Chapter 1.6 (Project Administration and Management: Grant
Modifications), October 1, 1998; see also FTA Proposed Circular C
5010.1D: Grant Management Requirements, Chapter 3.4 (Grant
Administration: Grant Modifications), September 28, 2007. Following
that categorization, the FTA then transmits only grant amendments to
the Department for processing, in accordance with the statute and
the Department's guidelines. Once grant amendments are received from
the FTA for processing, the Department reviews each grant amendment
to determine whether, as the statute now explicitly requires, it
``materially amend[s] existing assistance agreements [,]'' which
requires a referral, or does not ``materially amend existing
assistance agreements[,]'' which requires certification by the
Department without referral.
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Several comments raised concerns about the Department's distinction
between grant amendments that make material changes and those that make
immaterial changes to existing assistance agreements. Two comments
objected to the Department's description of the nature of an immaterial
grant amendment. Comments submitted by the Amalgamated Transit Union
(ATU) in response to the NPRM, October 15, 2007 (``ATU Comment''), page
3; United Transportation Union, October 11, 2007 (``UTU Comment''),
page 2. Additionally, one comment noted concern that ``the NPRM does
not appropriately define the line between material and immaterial grant
amendments'' and that ``the NPRM would actually allow material
amendments without referral, which clearly violates the intent of
Section 3031 of SAFETEA-LU.'' Comment submitted by Transportation
Trades Department, AFL-CIO, October 15, 2007 (``TTD Comment''), page 2.
As is the Department's current practice, Section 5333(b)(4) now
explicitly requires the Department to review and assess the potential
impact on employees and existing protections in order to distinguish
between those grant amendments that may ``materially revise or amend
existing assistance agreements,'' which will be referred, and those
that do not. In order to clearly incorporate the statutory mandate into
the Guidelines, the Department has revised proposed Section 215.5(a)(2)
(now Section 215.5(a)(1) in the final Guidelines) to indicate that
material changes are those that ``make changes to a project that may
necessitate alternative employee protections.'' If a grant amendment
makes changes to a project that may necessitate alternative employee
protections in the circumstances presented, a new referral will be
made. Conversely, those grant amendments that do not materially revise
a grant in such a way that they would potentially affect employees will
not be referred. The Department's past practice and administrative
experience, upon which the Department will rely to administer
certification of grant amendments, suggests generally that material
changes that may necessitate alternative employee protections include
those that constitute a significant, important or sizeable change to
items or elements in the federally funded project.
The Department agrees with those comments suggesting that the
specific examples of ``immaterial changes'' included in the proposed
guidelines did not provide useful guidance for either the Department or
the regulated community in determining when referral would be
necessary. The examples in the NPRM largely mirrored FTA criteria for
categorizing the nature and type of grant modifications for that
agency's determination of whether a change was, in fact, a ``grant
amendment,'' and did not serve to assist with the concept of
``material'' grant amendments as that term is used in Section
5333(b)(4). Because conclusions regarding the impact of changes may
vary in differing circumstances, those examples may not universally
qualify as immaterial changes for the Department's statutory purposes.
Moreover, the comments regarding the NPRM's examples of ``immaterial''
grant amendments reinforce the conclusion that the term itself is too
dependent on specific facts to be capable of a more detailed definition
in the abstract. Under these circumstances, hypothetical examples are
more likely to result in confusion than clarity.
Upon reconsideration of the approach to this subject in the NPRM,
the Department has made three modifications to Section 215.5 (in
addition to the change noted above regarding ``material'' amendments)
to clarify the procedures under which grant revisions or amendments
will be certified. First, as an organizational matter, the order of the
two sub-paragraphs in subsection 215.5(a) have been switched, so that
the initial subparagraph of the subsection addresses the issue of
``material'' revisions or amendments. Second, the term ``immaterial''
has been deleted from Section 215.5, and final subparagraph (a)(2)
instead addresses those cases in which ``an application amends in a
manner that is not material'' a previously certified grant. Finally,
those examples of immaterial changes to a grant have been deleted, and
because each grant is fact-specific, the Department has concluded that
including alternate examples of ``immaterial'' changes in the
Guidelines would not assist in the administration of the program * * *
See 29 CFR 215.5(a)(1) and (a)(2). As the Department does with all non-
referred grants, informational copies of those grant amendments not
referred will be sent to the affected labor organizations.
In addition, one comment notes that the proposed guidelines did not
include a provision in this section for the Department to ``make any
minimal modifications necessary to the protective terms where
application of existing protective agreements would not satisfy the
requirements of the statute in the circumstances presented.'' ATU
Comment, page 3. Similar authority has been adopted for like-kind
grants certified without referral, and comments suggested that such
language would be appropriate in any instance where protections would
be applied without referral. The Department has determined that such
language is not necessary to ensure satisfaction of the requirements of
the statute when grant amendments are processed by the Department. As
noted above, where grants materially revise existing assistance
agreements by making changes that may necessitate alternative employee
protections in the circumstances presented, the Department will refer
the grant amendment, and the parties will have the opportunity to
address employee protective provisions that may not satisfy the statute
in the circumstances presented. Where grant amendments make changes
that require no alternate employee protections, then the Department
need not retain authority to make unilateral modifications to employee
protections. Under either process, the requirements of the statute will
be assured, and there is no need for the Department's retention of this
authority with regard to grant amendments.
Finally, several comments indicated that a copy of applications for
grant amendments that result in no referral must be provided to labor
organizations. Consistent with the proposed guidelines, the Department
confirms that its ``processing of these applications will be expedited
and copies will be forwarded to interested parties.'' See 215.5(a)(2).
In addition, the Department
[[Page 47050]]
will forward to service area unions any informational copies of budget
revisions received from the Federal Transit Administration.
C. Special Warranty Procedures for Grant Applications for Other Than
Urbanized Areas and Grant Applications for Over-the-Road Bus
Accessibility Programs
For grant applications under 49 U.S.C. 5311 for funding of transit
operations in Other Than Urbanized areas, SAFETEA-LU now requires the
use of a warranty as the sole mechanism for certification of employee
protections, and eliminates the Secretary of Labor's option to waive
the required certification. See 49 U.S.C. 5311(i).\2\ Prior to the
enactment of SAFETEA-LU, the Department followed procedures contained
in a ``Guidebook'' published in September 1979 governing the processing
of small urban and rural grants. The Department is discontinuing use of
the 1979 Guidebook, and has included in sections 215.3(a)(4)(i) and
215.7 procedures to be used for the application of a warranty without
referral when processing Other Than Urbanized and Over-the-Road Bus
(OTRB) grants.\3\ The comments received by the Department raised
several issues, and particularly addressed two primary issues
concerning procedures used to bind State's subrecipients to terms of
the Special Warranty and the application of alternative comparable
arrangements when necessitated by requirements of the statute.
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\2\ The Other Than Urbanized transit grant program authorized by
49 U.S.C. 5311 was previously known as the ``small urban and rural
program.'' For clarity and consistency, this program is generally
referred to in this document as the Other Than Urbanized program and
not by its section number in Title 49 of the U.S. code.
\3\ The OTRB program was first established by Congress in
section 3038 of TEA-21, Public Law No. 105-178, 112 Stat. 107
(1998). It has been amended a number of times, most recently by
section 3039 of SAFETEA-LU. The authority for the program currently
appears in the Historical and Statutory Notes to 49 U.S.C. 5310. For
clarity and consistency, the program is referred to in this document
by its ``OTRB'' designation, rather than by citation to its public
law number or the 49 U.S.C. 5310 note.
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Regarding the subrecipients issue, the Department indicated in the
NPRM that it will include a requirement in the new Special Warranty
that the protective arrangements are binding upon any subrecipients
assisted under the grant. Three comments expressed concern that the
Department had eliminated the requirement contained in the Guidebook to
have State agencies provide copies of assurances to the Department
indicating each recipient had signed and understood the Special
Warranty. One comment in particular noted that ``[e]nforcement of
employee protections under such a provision would * * * be problematic
at best and more likely a practical, or even legal, impossibility.''
ATU Comment, page 5. Another comment indicated that ``transportation
labor urges the Department to establish procedures to guarantee that
sub-recipients are bound to the protective arrangements, perhaps by
continuing to require written assurances.'' TTD Comment, page 2. Still
another comment indicated that the Department cannot ``bind third
parties to arrangements simply by proclaiming they are bound in a
Special Warranty that will be incorporated into the contract of
assistance * * *.'' UTU Comment, page 3.
In response to these comments, the Department notes that the former
Special Warranty procedures required only that a State agency ``certify
to the Department of Labor that each Recipient designated to receive
transportation assistance under the Project has indicated in writing
acceptance of the terms and conditions of the Warranty.'' Rural
Transportation Employee Protection Guidebook, September 1979, page 13.
Thus, the Department did not require fully executed copies of the
Special Warranty from each subrecipient, but instead required only that
a State agency submit certified lists of recipients that it indicated
had signed the Warranty. Accordingly, the obligation to ensure that
recipients had signed and were thus bound by the Special Warranty has
long rested with the State agencies. The Department has not altered the
State agencies' responsibility to ensure that its subrecipients are
equally bound to the terms of the Special Warranty.
In response to concerns noted above regarding a State's obligation
to ensure that its subrecipients are bound to the terms of the Special
Warranty, the Department clarifies its proposal in the NPRM that it
will include language in the Special Warranty requiring the State
agency (Grantee), which signs the contract of assistance, to obligate
its subrecipients to the required protections as a condition precedent
to the subrecipient's receipt of any funds under the contract of
assistance. Thus, the requirement remains that a State agency must
ensure that sub-recipients have agreed to be bound by the protective
arrangements. That requirement will now be an explicit part of the
Special Warranty, and the failure to comply with this provision may
impact the State's eligibility for such funds. In addition, should a
Grantee fail to bind a subrecipient, the alleged breach can be pursued
in a state court. Therefore, the new procedure is an adequate,
effective alternative to assuring that subrecipients are bound and
their employees are aware that the protections of the Special Warranty
are fully applicable.
Regarding the ``alternative comparable arrangement procedures''
issue, the Department stated in the NPRM that ``as required under
SAFETEA-LU, the Department will eliminate waivers and procedures to
request alternative comparable arrangements.'' This statement raised
concerns among several commenters. Some noted that although SAFETEA-LU
eliminated procedures to waive application of the Special Warranty, the
amendment did not require that the alternative comparable arrangements
provision be removed. In addition, comments noted, some State agencies
and subrecipients may be deemed ineligible for assistance if
alternative warranty arrangements were not available.
SAFETEA-LU specifies that employee protections will be applicable
to Other Than Urbanized grants ``if the Secretary of Labor utilizes a
special warranty that provides a fair and equitable arrangement to
protect the interests of employees.'' 49 U.S.C. 5311(i). To clarify our
statement in the NPRM, the Department interprets this statutory
provision to preclude the development of alternate arrangements through
special procedures established in the Guidelines. However, after
considering comments, the Department has concluded that where a
recipient is unable to satisfy the specific provisions in the Special
Warranty because of a conflict with State or local law, the Department
will make every effort to develop modifications to the Warranty that
are necessary to ensure that the requirements of the statute are
satisfied.
This approach is consistent with the Department's residual
authority, noted above in reference to like-kind grants, to make
modifications to non-referred arrangements where necessary. Therefore,
as with all non-referred arrangements that present compliance problems
for grantees as the result of conflict with State or local law, parties
must notify the Department in writing in advance of the Department's
certification that modification to the terms of the Special Warranty
may be necessary. In instances in which the Department makes necessary
modifications to the Special Warranty for specific recipients or
subrecipients, a supplementary certification letter will be sent to the
FTA setting forth the alternative provisions to be included in
[[Page 47051]]
the contract of assistance between the recipient and FTA, by reference.
Other comments concerning the new Special Warranty procedures
addressed the omission of a provision in the proposed guidelines to
ensure that potentially affected transit employees in the service area
of Other Than Urbanized grants, in addition to those employees who may
be affected by Over-the-Road Bus grants, are notified of their rights
under the Special Warranty and receive copies of grant applications to
facilitate the unions' administration of protections. This inadvertent
oversight has been corrected in the final guidelines, which now state
that the ``Department will notify labor organizations representing
potentially affected transit employees of the approval of Other Than
Urbanized and OTRB grants and inform them of their rights under the
Special Warranty Arrangement.'' See Section 215.7(d)(2).
Two comments note that proposed Section 215.7 states that the
revised Special Warranty will be ``derived from the terms and
conditions of the May 1979 Special Section 13(c) Warranty, and the
Department's subsequent experience under 49 U.S.C. 5333(b).'' NPRM
Section 215.7. These comments request that the Department clarify what
it means to ``derive'' protections from the current Special Warranty,
and that it also specify that the terms and conditions of any new
Warranty Arrangement will be ``no less protective'' and ``offer no less
protection'' than the version currently in place. ATU Comment, page 5;
UTU Comment, page 3. While the terms and conditions of the Special
Warranty will adopt much of the May 1979 Special Section 13(c)
Warranty, some additional changes are needed to reflect processing
differences under the new Guidelines, to create a self-contained
document, and to update the language. Most of the planned changes are
largely procedural and were previously described in the NPRM, such as
the establishment of procedures necessary to bind subrecipients, the
elimination of the need for unions to become a party to the Special
Warranty, the elimination of the Department's finding of noncompliance
in the Other Than Urbanized program, and the adoption of a dispute
resolution procedure that ends the Department's involvement in claims
arbitration. In response to concerns that the new Special Warranty must
not be less protective than its predecessor, the Department will ensure
that the provisions of the new Special Warranty provide appropriate
protections for Other Than Urbanized and OTRB grants and continue to
satisfy all the requirements of the statute.
Two comments note that the Department has indicated that it will no
longer make findings of non-compliance and will instead include a
dispute resolution procedure to address compliance issues that arise
under the Special Warranty. One comment indicates that ``provisions
must be made for the Department to honor an arbitrator's ruling of non-
compliance and refuse further certifications to stop new funding from
flowing to the recipient until evidence of compliance is presented to
the arbitrator.'' ATU Comment, page 5. In the absence of such
provisions, the commenter suggests that violators would be free of
consequences resulting from the failure to abide by the Warranty. The
Department has concluded that the inclusion of a standard labor
arbitration dispute resolution procedure in the Special Warranty will
ensure that there is a process in place to resolve disputes, and the
arbitrator may direct compliance with the terms of the Warranty. A
prevailing party to an arbitrator's ruling directing compliance with
the terms of the Warranty can seek enforcement of that ruling in the
appropriate state court.
Three comments indicate that it is unclear how the Special Warranty
is to be included in the contract of assistance. The proposed
guidelines specified in section 215.7(c) that ``[t]he Federal Transit
Administration will include the current version of the Special
Warranty, through reference in its Master Agreement.'' The Master
Agreement is included in each contract of assistance with a Grantee
receiving Federal assistance and the reference in the Master Agreement
will include language which specifies that the recipient agrees to
comply with the terms and conditions of the Special Warranty
Arrangement which is most current as of the date of execution of the
contract of assistance, and any alternative comparable arrangements
specified by the Department of Labor for application to the recipient's
grants.. Inclusion of this language in the Master Agreement will ensure
that the protections are binding on the Grantee and the specific
reference to Special Warranty Arrangement that is most current as of
the date of the execution of the contract of assistance will eliminate
confusion about which terms and conditions were applied if changes to
the Warranty are made in the future.
Several comments raised concerns regarding the procedures the
Department will use to identify relevant labor organizations as a
result of the Department's notification provision in Section
215.7(d)(2) of the proposed guidelines (now Section 215.7(c)(2) of the
final guidelines). In the past, the Department has relied on
information contained in the grant applications to identify labor
organizations that may be affected by grants and should be notified of
Federal funding of projects, and such information has generally proven
sufficient to make such identification. Accordingly, this information
will be employed to make the notifications required in Section
215.7(c)(2). Other comments expressed doubt that, as asserted in the
NPRM, the changes to the Special Warranty procedures will advance
administrative efficiency. In response, the Department notes a variety
of changes that it believes will improve the efficiency of the Special
Warranty program and streamline the Department's processes: the
provision establishing that the FTA will incorporate required employee
protections into the contract of assistance through the Master
Agreement and proceed with funding of Other Than Urbanized and Over the
Road Bus grants without awaiting the Department's prior approval; the
elimination of procedures to request to become a party to the warranty;
the elimination of waiver procedures; and establishment of third-party
neutral arbitration of disputes involving labor organizations, among
others.
D. Unified Protective Arrangement
In the NPRM, the Department proposed amending section 215.3(b)(1)
and (2) of the guidelines to implement use of a unified protective
arrangement (UPA) for both operating and capital grants except in
certain situations set forth in the guidelines.\4\ The use of the UPA
was primarily proposed because, over the past 12 years, administrative
modifications to the Department's Operating and Capital Assistance
Arrangements have rendered the two documents virtually identical to
each other. As a result, the Department determined that two separate
arrangements were no longer necessary, and administrative efficiency
would be improved through the application of a single arrangement
applicable to both operating and capital assistance. Application of a
single UPA to future
[[Page 47052]]
grants will simplify the preparation of referrals, expedite processing
of grant applications, and, most importantly, continue to satisfy the
requirements of the statute.
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\4\ The NPRM indicated that the Department was proposing to
amend sections 215.3(b)(2) and (b)(3) to address the UPA. The
changes in the guidelines, however, are in sections (b)(1) and
(b)(2), and the conflicting section (b)(3) has been deleted in the
final guidelines. In addition, these changes require a corresponding
revision to Section 215.3(d)(7), in order to delete references to
``Sec. Sec. 215.3(b)(2) and 215.3(b)(3)'' and to substitute
``215.3(b)(1)'' for those references.
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To clarify those circumstances in which previously certified
arrangements will continue to be referred, and those circumstances in
which the UPA will be referred, the Department has made organizational
and substantive revisions to Sections 215.3(b)(1) and (b)(2). Section
215.3(b)(1) now sets forth the general proposition that the Department
will refer to applicants with previously certified arrangements, and
new applicants that develop and submit protections to the Department
before applying for assistance, those protective terms and conditions
that are appropriate to the new grant and are set by:
(1) A negotiated agreement developed and executed by the parties or
the parties' adoption of the Model Agreement;
(2) Terms adopted by a state or local government based on agreement
between the grantee and affected employees, where the grantee is a
state or political subdivision subject to legal restrictions on
bargaining collectively with employee organizations;
(3) A determination of protective terms by the Department that
modifies in whole or in part negotiated or adopted protections; or
(4) A standardized arrangement (either the Operating or Capital
Arrangement) that has been modified through agreement or determination
to include provisions that are more protective than the UPA.
See 29 CFR 215.3(b)(1). In order to improve the logical flow of this
paragraph in the guidelines, the placement of the third and fourth
categories in Section 215.3(b)(1) have been switched from the order set
out in the NPRM. The Department anticipates that applicants with
previously certified arrangements that fall into the categories
identified in 215.3(b)(1) will continue to constitute the majority of
the Department's referrals. The Department further anticipates that
there will be very few situations that fall under the fourth type of
arrangement listed above. An additional organizational change made was
to Section 215.3(b)(2), which now states that in all other
circumstances, the Department will refer the UPA. See revised Section
215.3(b)(1) and (2).
In addition to the organizational change, the Department has
concluded that a substantive revision was required to Section
215.3(b)(1) (formerly proposed 215.3(b)(2)) because the standard
originally proposed--i.e., whether a provision in an arrangement
modified by negotiation or Department determination, was ``addressed
by'' the UPA--was ambiguous and would permit the substitution of the
UPA in those cases in which the parties' may have adopted unique
provisions that may be ``more protective than'' the UPA. Similarly, the
language may have permitted the substitution of the UPA for a
negotiated agreement or adopted instrument where the Department had
made a determination addressing one issue in that otherwise unique
agreed upon document. This result was not intended, and so the standard
for the use of the UPA in those cases in which the applicant has
protective terms described in Section 215.3(b)(1)(iii) and (iv) has
been modified accordingly.
A number of comments raised concerns regarding the continued
application of previously certified arrangements, and whether they
would be replaced in new grants by new arrangements. With the
implementation of these guidelines revisions, in those cases in which
the applicant has been previously certified on the basis of the
Operating or Capital Arrangements, and there has been no modification
to that previously certified arrangement through negotiation or
Departmental determination, the UPA will be referred to the parties for
the next grant. Section 215.3(b)(2). In those cases in which the
applicant has been previously certified on the basis of the Operating
or Capital Arrangement that has been modified either through
negotiation or Departmental determination, and that modification
contains a protective provision with an equivalent level of protection
as a provision in the UPA, then the UPA will form the basis of the
referral for the next grant. Section 215.3(b)(2). If the applicant has
been previously certified on the basis of the Operating or Capital
Arrangement, and any negotiated or Department-imposed modification
thereto contains a protective provision that exceeds the level of
protection established by a similar provision in the UPA, then the
previously certified arrangement and not the UPA will be referred for
the next grant because that arrangement is unique to those parties.
Section 215.3(b)(1)(iv). The Department considers to be relatively rare
those cases in which a grantee has been previously certified on the
basis of Operating or Capital arrangement with more protective
negotiated or Departmentally determined modifications. If the grantee
has been previously certified based on protective terms and conditions
that include, in whole or in part, a Departmental determination, then
the previously certified terms and conditions and not the UPA will be
referred for the next grant, again because those protections are unique
to those parties. Section 215.3(b)(1)(iii). Finally, if the grantee's
previous certifications are based on either a negotiated agreement,
adoption of the Model Agreement, or adoption through resolution or
other means by a state or local government of protective terms agreed
to by the parties, those protections are unique to the parties and will
form the basis of the Department's referral for the grantee's next
grant. Section 215.3(b)(1)(i) and (ii). The same is true for new
applicants that present to the Department proposed terms for
certification based on either a negotiated agreement, adoption of the
Model Agreement, or adoption through resolution or other means by a
state or local government of protective terms agreed to by the
parties--the Department's referral in those cases will be based on
those proposed terms and not the UPA. Section 215.3(b)(1).
Three comments indicated that there was support for a UPA, and for
elimination of the sole provider clause from the terms and conditions
to be applied. The Department received no explicit objections to
elimination of the sole provider clause, but we presume that labor
organizations that objected to the development of the UPA in general
objected sub silentio to the elimination of the sole provider clause.
The primary goal addressed by the use of the UPA is to substitute one
instrument in place of the two instruments previously used. In
addition, the terms of the UPA are intended to uniformly apply
statutorily sufficient terms and conditions to future grants, where
warranted. As a result, the UPA will exclude the ``sole provider''
clause, which has been determined by the Department to be unnecessary
in ensuring compliance with the statute.
Some comments indicated that certifying new arrangements for grant
applicants that are already a party to Department of Labor-crafted
arrangements would not create efficiencies in administration of the
employee protections and would add to the number of arrangements to be
administered, not reduce their proliferation. Currently, each time a
new union is recognized, service is expanded to areas involving new
unions, or a new project is proposed, additional operating and/or
capital arrangements are put in place to accommodate the new unions or
new service. Applying the UPA will reduce
[[Page 47053]]
this proliferation of operating and capital arrangements through
application of the same arrangement to all those unions that are using
standard Department of Labor-crafted arrangements. As new grant
applications are submitted, the Department will refer the UPA rather
than the various post-1996 Operating and Capital Arrangements. As a
result, the administrative burden for the regulated community, as well
as the Department, will decrease over time.
Several comments expressed concerns that the Department's proposed
adoption of the UPA is not consistent with the policy that the
Department adopted when it revised the guidelines in 1996. One comment
indicated that the earlier guidelines ``sought to preserve all terms,
including those never negotiated or in bilateral agreements.'' ATU
Comment, page 7. Another comment indicated ``it is improper to
unilaterally negate arrangements that were negotiated in good faith or
developed by DOL determination following briefing by the parties.''
Comment submitted jointly by the American Train Dispatchers
Association, et al. (``ATDA, et al. comment'') in response to NPRM,
October 15, 2007, page 3. The Department recognizes that the approach
of applying the UPA in lieu of previously certified standard protective
arrangements, i.e., the Operating or Capital Arrangements, departs from
the practice established under the 1996 guidelines. Pursuant to the
1996 guidelines revisions, new applicants and applicants for which
previously certified arrangements were not appropriate to the pending
project received a referral based on either the Operating Arrangement
or the Capital Arrangement, and that arrangement would continue to be
applied to subsequent grants unless the parties objected and the
provisions were renegotiated. This system led to the proliferation of
multiple arrangements and created a system that is currently difficult
to administer. The UPA was developed in order to consolidate
protections into one document that satisfies all of the statutory
requirements. This will eventually reduce the grantees' need to
administer multiple sets of standard arrangements for unions
representing affected employees in the service area of a project. Use
of the UPA will also benefit International Unions, because their
oversight of protections applied for their local unions should be
substantially more uniform. Moreover, application of the UPA in lieu of
existing standard arrangements does not ``unilaterally negate'' the
existing protective arrangements, because those arrangements will
continue to be in force for the projects for which they were certified.
Only grantees with previous certifications that do not fall into one of
the categories contained in Section 215.3(b)(1) will have the UPA
referred as a standard protective arrangement.
The Department's administration of the program will also be
improved using the UPA. Initially, as one comment suggested, the
Department's decisions regarding referrals based on the UPA will ``call
for a level of discretion in individual cases that will render the
process more, rather than less complex.'' ATDA, et al. comment, p. 3.
However, once the exceptions have been identified, processing of future
grants will be expedited considerably. It will be easier to keep track
of the appropriate protections to be included in future referrals and
the parties to those protections. In the long run, there will be fewer
arrangements for the Department and the regulated community to
administer, and it will be easier to change a standard arrangement such
as the UPA to reflect current program policies and statutory standards
applicable to grants whenever necessary. As the Department previously
indicated, it will also provide administrative certainty for the
applicant and union because, with the exception of existing negotiated
agreements and certain arrangements which are the product of
negotiations or determinations, only the UPA will be applied to any
particular grant.
Finally, one comment expressed concern about the referral of the
UPA should one or more provisions within it conflict with State law.
The Department has determined that a State law conflict with one or
more provisions of the UPA's protective terms and conditions will not
render the entire document ``inappropriate'' for referral. In the event
that a State law conflict is raised in connection with the provisions
in the UPA, the Department will resolve such a conflict in the same
manner that it currently does--by negotiation or Departmental
determination of a substitute term required as the result of a
sufficient objection raised under Section 215.3(d)(3).
E. Exclusion of Over-the-Road Bus Accessibility Program From the
Department's Referral Process
The Department proposed amending Section 215.3(a)(4) of the
guidelines to specify that OTRB grants will no longer be subject to its
referral process, but instead will be certified on the basis of the
Special Warranty. The NPRM indicated that by eliminating referrals for
OTRB grants and using the Special Warranty for certification, the
Department intended to fully implement a requirement in the legislation
establishing the OTRB program (Transportation Equity Act for the 21st
Century ``TEA-21'', Public Law 105-178 (1998)) that OTRB grants ``shall
be subject to all of the terms and conditions applicable to
subrecipients who provide intercity bus transportation under section
5311(f) of title 49.'' Section 3038(f) of TEA-21. The Department
reasoned that because grants under 49 U.S.C. 5311(f) are certified on
the basis of the Special Warranty without referral to the parties, TEA-
21 contemplated that OTRB grants would be certified on the basis of the
Special Warranty without referral.
Three comments challenged the Department's stated interpretation of
TEA-21. Commenters suggested that in the absence of specific
exclusionary language, TEA-21 cannot be read to preclude the use of the
referral process for OTRB grants, particularly in light of the fact
that Congress subsequently employed specific exclusionary language in
SAFETEA-LU with regard to the Other Than Urbanized grant program.
Upon reconsideration, the Department agrees with those comments
stating that TEA-21 does not require OTRB grants to be certified
without referral. Indeed, in 1999, when finalizing revisions to the
Guidelines following the passage of TEA-21, the Department concluded
that TEA-21 requires only that OTRB grants be subject to certification
by the Secretary under Section 5333(b), and that ``neither th[at]
statute nor [its] legislative history specify the procedures for
processing these grants.'' See 64 FR 40,990, 40,992 (July 28, 1999).
Accordingly, ``the Department has flexibility to develop and implement
procedures appropriate to carry out its section 5333(b)
responsibilities'' as to these grants. Ibid. In employing its
administrative discretion under TEA-21, the Department at that time
decided to employ the use of its referral procedures to OTRB grants.
Although the Department agrees that TEA-21 does not require OTRB
grants to be certified without referral, the Department nevertheless
adheres to its proposal in the NPRM that such grants will be processed
in that manner. While one comment appears to argue that TEA-21 mandates
the use of referral (ATU Comment, page 7), such an argument is premised
on the incorrect
[[Page 47054]]
assumption, which the Department rejected in 1999, that the ``terms and
conditions'' guaranteed by TEA-21 include the referral procedure. Thus,
the comment has provided no basis for concluding that referral is
required. As a result, in employing its discretion, the Department now
concludes that use of the Special Warranty without referral is the
preferred policy in the OTRB context. As explained in the NPRM, the
Department's experience with the OTRB program has led to the conclusion
that use of the Special Warranty will improve administration of the
program. See 72 FR at 52,522. Use of the Warranty streamlines the
Department's processing of grants that have limited potential for
adversely affecting employees and historically have been the subject of
very few objections, while continuing to ensure that the requirements
of the statute are satisfied through application of a Special Warranty.
Accordingly, the Department will administer grants under the OTRB
program through application of the warranty arrangement set forth in
Section 215.7, which also provides procedures to be followed for the
Other Than Urbanized program. See Section 215.7.
F. Administrative Changes
Several adjustments were proposed in the NPRM to reflect current
administrative practices.
First, the Department has eliminated language contained in Section
215.2 of the guidelines indicating that it will process applications
that are in ``preliminary'' form. This section now requires that
applications ``be in final form,'' based on the Department's
determination that its administrative processes should not be engaged
until the grant application reflects the actual project activities to
be undertaken. Although all project activities must be firmly
established, it is not necessary that project funding be available for
the entire grant before the Department processes its certification of
the grant. In addition, Section 215.8 will be modified to add an e-mail
address and correct the room number of the Division of Statutory
Programs office. Finally, the text of Section 5333(b) of the Federal
transit law, which was set out in its entirety in Section 215.1 of the
current Guidelines, has been removed from that section in the Final
Guidelines so that modifications of the Guidelines will not be
necessary each time statutory changes are enacted. The Department
received no comments addressing these proposed administrative changes.
As a result, the Final Guidelines will incorporate these revisions as
proposed in the NPRM.
As part of its administrative changes, the Department proposed to
amend Section 215.6 to further explain how interested parties may
utilize the July 23, 1975 National (Model) Agreement. In particular,
the Department proposed to add procedures in Section 215.6, comparable
to those in paragraphs 26, 27, and 28 of the Model Agreement itself, by
which applicants and unions may become a party to or withdraw from the
Model Agreement. One comment objected to the inclusion of these
National Agreement paragraphs as untimely and unnecessary, indicating
that they provide an ``incomplete explanation containing only a
fraction of the procedures under the National Agreement.'' ATU Comment,
page 8. Furthermore, it was indicated that additional parties no longer
sign on to the National Agreement, and that those that are a party
require no additional explanation and have access to the National
Agreement itself or can access it through the Department's Web site.
The Department's proposed guidelines were intended to increase
awareness that the Model Agreement remains an appropriate instrument
for the parties to agree to and apply to operating assistance projects.
If grant recipients choose to do so, they, along with labor
organizations representing employees in the service area, may continue
to sign on to the Model Agreement and the Department will utilize this
as a basis for referral of operating grants. Upon reconsideration, the
Department concludes that it is not necessary to include in the Final
Guidelines procedures regarding becoming a party to or withdrawing from
the Model Agreement, particularly because the entire Model Agreement is
available on the Department's Web site. Accordingly, section 215.6 of
the guidelines will remain unchanged from its current version, except
to make a technical correction so that this section accurately refers
back to a revised portion of Section 215.3, and to reflect the current
name of the American Public Transportation Association. See 29 CFR
215.6.
G. Las Vegas Decisions
Several comments addressed the Department's discussion of Section
3031 of SAFETEA-LU, which directs the Department to follow certain
substantive principles enunciated in the Department's decisions for
grant NV-90-X021 (decision of September 21, 1994, supplemented by
decision of November 7, 1994, also called the ``Las Vegas decisions'')
when making determinations involving assurances of employment when one
private transit bus service contractor replaces another through
competitive bidding. See 49 U.S.C. 5333(b)(5). The Department stated in
the NPRM that because the Guidelines are procedural in nature, and do
not encompass discussion governing the adjudication of substantive
rights of parties, this provision of SAFETEA-LU would not be addressed
in the revisions of the Guidelines.
In response to the NPRM, two comments requested that the Department
address the Las Vegas decisions in its final rule, one suggested that
the Department use only the precise language of the decisions, and the
other suggested that the Department fully analyze and explain those
decisions in the final rule. One comment in particular, submitted on
behalf of the Regional Transportation Commission of Southern Nevada
(``RTC''), took issue with the Department's very limited description of
the Las Vegas decision in the NPRM and asserted that the Department had
``mischaracterized'' and ``fail[ed] to fairly and honestly explain the
principles'' of the Las Vegas decisions. Comment of RTC submitted in
Response to NPRM, Oct. 15, 2007, at 4. Although the RTC comment urges
the Department to set forth a substantive interpretation of the Las
Vegas decisions, the comment does not discuss the Department's primary
justification for not addressing the decisions' principles in the
guidelines--i.e., the Department's guidelines have, since 1978, been
intended only to establish procedures governing the efficient
certification of transit grants and not substantive interpretation of
49 U.S.C. 5333(b) guarantees. Moreover, the Department's brief
discussion of the Las Vegas decisions, in the context of explaining why
the Department would not address them in its procedural guidelines, was
not intended to constitute complete guidance on, or interpretation of,
the principles articulated in those decisions. Thus, it is unnecessary
to join issue on the question whether the Department mischaracterized
those principles in the NPRM. Parties to Departmental determinations,
in which the Las Vegas principles are relevant, will be free to present
argument about the principles' meaning and application, and those
arguments will be considered and resolved with reference to specific
facts presented by that existing case or controversy. Thus, the
Department adheres to its conclusion in the NPRM that these procedural
guidelines should not address the Las Vegas decisions,
[[Page 47055]]
and that application of the Las Vegas principles is better carried out
on a case by case basis. Although not incorporated in these Guidelines,
the Department, of course, will adhere to the statutory mandate
contained in 49 U.S.C. 5333(b)(5). The Department's Las Vegas
determinations, and subsequent determinations made based on principles
set forth in the Las Vegas determinations, will be available for review
on the Department's Web site.
H. Other Comments Addressing Issues That Exceed the Scope of Revisions
Proposed in the NPRM
The Department received comments on issues that exceed the scope
and nature of the revisions made to the Guidelines in the NPRM. For
instance, one commenter suggested that the Department revise the
criteria used for the determination of sufficiency of objections under
Section 215.3(d)(3), and include in those criteria ``court decisions,
state law, or age of the referred protective arrangement.'' Comment
submitted by Jim Seals Consulting Services in response to the NPRM,
October 15, 2007, page 1.
Another comment requested that the Special Warranty be applied to
Job Access and Reverse Commute (``JARC'') grants serving populations
under 200,000 to expedite processing of these grants because of their
similarity to grants under the Other than Urbanized program. The rural
JARC program is processed by the Department under Section
215.3(a)(4)(ii) without referral to affected labor organizations on the
basis of existing agreements or Department of Labor-crafted protective
arrangements, as appropriate.
The Department appreciates guidance offered by these comments, but
because no proposals were made regarding these topics, they are beyond
the scope of the revisions contemplated by the NPRM, and will not be
considered at this time.
III. Regulatory Procedures
Executive Order 12866
This final rule has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Department has determined that this rule is not a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review. The Department has also determined that
this rule is not ``economically significant'' as defined in Section
3(f)(1) of Executive Order 12866. Therefore, the information enumerated
in section 6(a)(3)(C) of the order is not required.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601, et
seq., federal agencies must consider the impact of their rules on small
entities. However, the requirements of the RFA apply only to rules that
must be promulgated pursuant to notice and comment procedures under
Section 553(b) of the Administrative Procedure Act (``APA''), 5 U.S.C.
553(b). 5 U.S.C. 603(a). Section 553(a) of the APA exempts from notice
and comment rulemaking interpretative rules, general statements of
policy, or rules of agency organization, procedure or practice. 5
U.S.C. 553(a).
Under the Federal transit law, the Department is charged with the
duty to administer the statutory grant certification process, and
therefore must issue procedural rules to establish standards to
effectuate this Congressionally delegated authority. This final rule
establishes such procedural standards, and therefore is exempt from
notice and comment rulemaking under Section 553(a) of the APA.\5\ As a
result, this rule is also exempt from the requirements of the RFA. The
Assistant Secretary for Employment Standards has certified this
conclusion to the Chief Counsel for Advocacy of the Small Business
Administration.
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\5\ Although the rule need not be promulgated pursuant to notice
and comment procedures, the Department has elected to use those
procedures in order to obtain valuable input from the regulated
community and to increase government transparency and
accountability.
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Unfunded Mandates Reform
Executive Order 12875--This rule will not create an unfunded
Federal mandate upon any State, local or tribal government.
Unfunded Mandates Reform Act of 1995--This rule will not include
any Federal mandate that may result in increased expenditures by State,
local, and tribal governments, in the aggregate, of $100 million or
more, or in increased expenditures by the private sector of $100
million or more.
Paperwork Reduction Act
These Guidelines contain no new information collection requirements
for purposes of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
Small Business Regulatory Enforcement Fairness Act of 1996
A. This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100,000,000 or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of the United States-based companies to
compete with foreign-based companies in domestic and export markets.
B. Consistent with the Small Business Regulatory Enforcement
Fairness Act of 1996, the Department will, prior to the rule's
Effective Date, submit to Congress a report regarding the issuance of
today's final rule. The report will note the Office of Management and
Budget's determination that this rule does not constitute a ``major
rule'' under the Act. 5 U.S.C. 801, 805.
Congressional Review Act
Consistent with the Congressional Review Act, 5 U.S.C. 801, et
seq., the Department will submit to Congress and the Comptroller
General of the United States a report regarding the issuance of this
Final Rule prior to the effective date set forth at the outset of this
document.
List of Subjects in 29 CFR Part 215
Grant administration; Grants--transportation; Labor-management
relations; Labor unions; Mass transportation.
0
In consideration of the foregoing, the Department of Labor, Office of
Labor-Management Standards, hereby amends part 215 of title 29 of the
Code of Federal Regulations as set forth below.
PART 215--GUIDELINES, SECTION 5333(b), FEDERAL TRANSIT LAW
0
1. The authority citation for part 215 is revised to read as follows:
Authority: Secretary's Order No. 4-2007, 72 FR 26159, May 8,
2007.
0
2. Section 215.1 is revised to read as follows:
Sec. 215.1 Purpose.
The purpose of these guidelines is to provide information
concerning the Department of Labor's administrative procedures in
processing applications for assistance under the Federal Transit law,
as codified at 49 U.S.C. chapter 53.
Sec. 215.2 [Amended]
0
3. Section 215.2 is amended by removing ``may be in either preliminary
or final form'' and adding in its place ``must be in final form''.
0
4. Section 215.3 is amended as follows:
0
a. Revise paragraphs (a)(3), (a)(4), and (b);
0
b. Amend paragraph (d)(7) by removing ``Sec. Sec. 215.3(b)(2) and
[[Page 47056]]
215.3(b)(3)'' and adding in its place ``215.3(b)(1)''.
The revisions read as follows:
Sec. 215.3 Employees represented by a labor organization.
(a) * * *
(3) If an application involves a grant to a state administrative
agency or designated recipient that will pass assistance through to
subrecipients, the Department will refer and process each
subrecipient's respective portion of the project in accordance with
this section. If a state administrative agency or designated recipient
has previously provided employee protections on behalf of subrecipients
in accordance with the terms of a negotiated agreement, the referral
will be based on those terms and conditions.
(4) The referral procedures set forth in paragraphs (b) through (h)
of this section are not applicable to the following grants:
(i) Grants to applicants for the Over-the-Road Bus Accessibility
Program, and grant applications for the Other Than Urbanized Program; a
special warranty will be applied to such grants under the procedures in
Sec. 215.7.
(ii) Grants to applicants serving populations under 200,000 under
the Job Access and Reverse Commute Program or grants to capitalize
State Infrastructure Bank accounts under the State Infrastructure Bank
Program.
(iii) Grants involving only capital assistance for replacement of
equipment and/or facilities of like-kind; these will be certified by
the Department without referral on the basis of existing agreements or
the Unified Protective Arrangement as referenced in paragraphs (b)(1)
or (b)(2) of this section. Where application of the existing protective
agreement(s) or the Unified Protective Arrangement would not satisfy
the requirements of the statute in the circumstances presented, the
Department will make necessary modifications to the existing
protections to ensure that the requirements of the statute are
satisfied.
(5) The Department will notify labor organizations representing
potentially affected transit employees of the certification of grants
without referral under paragraph (a)(4) of this section and inform them
of their rights under the applicable protective arrangements.
(b) Upon receipt from the Federal Transit Administration of an
application involving affected employees represented by a labor
organization, the Department will refer a copy of the application and
proposed terms for certification to that organization and to the
applicant, and will also provide a copy to subrecipients with unions in
their service area.
(1) For applicants with existing protections the Department's
referral will be based on those protective terms and conditions that
are appropriate to the grant and are set by:
(i) A signed negotiated agreement or formal acceptance of the July
23, 1975 National (Model) Agreement;
(ii) Agreed-upon terms adopted by a State or local government
through a resolution or similar instrument;
(iii)) A determination of protective terms by the Department that
modifies in whole or in part negotiated or adopted protections; or
(iv) A protective arrangement that has been modified to include
provisions that are more protective than the Unified Protective
Arrangement referred to in paragraph (b)(2) of this section.
(2) For applicants without protective terms and conditions set by
an arrangement described in paragraph (b)(1) of this section, the
referral will be based on the terms and conditions of the Unified
Protective Arrangement.
* * * * *
0
5. Section 215.5 is revised to read as follows:
Sec. 215.5 Processing of amendments.
(a) Grant modifications in the form of grant amendments will be
transmitted by the Federal Transit Administration to the Department for
review. Applications amending a grant for which the Department has
already certified fair and equitable arrangements to protect the
interests of transit employees affected by the project, will be
processed by the Department following one of the two procedures
described in paragraphs (a)(1) and (2) of this section.
(1) When an application amends a grant for which the Department has
previously certified fair and equitable arrangements and the amendment
makes changes to a project that may necessitate alternative employee
protections, the Department will conclude that the amendment materially
amends the existing assistance agreement. The Department will refer
and/or process the labor certification provisions of such an amended
grant according to procedures specified under Sec. Sec. 215.3 and
215.4, as appropriate.
(2) When an application amends in a manner that is not material a
grant for which the Department has already certified fair and equitable
arrangements, the Department will, on its own initiative and without
referral to the parties, certify the subject grant on the same terms
and conditions as were certified for the project as originally
constituted. The Department's processing of these applications will be
expedited and copies will be forwarded to interested parties.
(b) Budget Revisions that make minor changes within the scope of
the existing grant agreement and do not require a Federal Transit
Administration grant amendment, as set forth in Federal Transit
Administration guidance, will be covered under the Department's
original certifications.
Sec. 215.6 [Amended]
0
6. Section 215.6 is amended as follows:
0
a. Remove ``paragraph (b)(3)(i)'' and add in its place ``paragraphs
(b)(1)(i) and (b)(2)'';
0
b. Following ``American Public Transit Association'' add ``(now known
as the American Public Transportation Association)''.
0
7. Section 215.7 is amended as follows:
0
a. Remove ``(b)(3)(ii)'' and add ``(b)(2)'' in its place;
0
b. Remove the phrase ``small urban and rural program under section 5311
of the Federal Transit Statute'' and add in its place ``Other Than
Urbanized program''.
0
c. Designate the existing text as paragraph (a) and add two sentences
to the end; and
0
d. Add new paragraphs (b) and (c).
The revisions and additions read as follows:
Sec. 215.7 The Special Warranty.
(a) * * * The Special Warranty Arrangement applicable to OTRB and
Other Than Urbanized grants will be derived from the terms and
conditions of the May 1979 Special Section 13(c) Warranty, and the
Department's subsequent experience under 49 U.S.C. 5333(b). From time
to time, the Department may update this Special Warranty Arrangement to
reflect developments in the employee protection program.
(b) The requirements of 49 U.S.C. 5333(b) for OTRB and ``Other Than
Urbanized'' grants are satisfied through application of a Special
Warranty Arrangement certified by the Department of Labor; a copy of
the current arrangement will be included on the OLMS Web site.
(c) The Federal Transit Administration will include the current
version of the Special Warranty Arrangement, through reference in its
Master Agreement, in each OTRB and Other Than Urbanized grant of
assistance under the statute.
(1) The Federal Transit Administration will notify the
[[Page 47057]]
Department that it is funding an OTRB or Other Than Urbanized grant by
transmitting to the Department an information copy of each grant
application upon approval of the grant.
(i) Each grant of assistance for an Other Than Urbanized program
will contain a labor section identifying labor organizations
representing transit employees of each subrecipient, the labor
organizations representing employees of other transit providers in the
service area, and a list of those transit providers. A sample format is
posted on the OLMS Web site to facilitate the inclusion of this
information in the grant application.
(ii) OTRB grants of assistance will contain a labor section
identifying labor organizations representing employees of the
recipient.
(2) The Department will notify labor organizations representing
potentially affected transit employees of the approval of Other Than
Urbanized and OTRB grants and inform them of their rights under the
Special Warranty Arrangement.
Sec. 215.8 [Amended]
0
8. Section 215.8 is amended as follows:
0
a. Remove ``Director,'' and add in its place ``Chief, Division of'';
0
b. Remove ``Suite N5603,''; and
0
c. Add the phrase ``or e-mailed to [email protected]'' at the
end of the paragraph.
Signed at Washington, DC, this 4th day of August, 2008.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Donald Todd,
Deputy Assistant Secretary, Office of Labor-Management Standards.
[FR Doc. E8-18497 Filed 8-12-08; 8:45 am]
BILLING CODE 4510-CP-P