ESA
Proposed Rules
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
[ 9/14/2007]
[ PDF]
FR Doc E7-18040
[Federal Register: September 14, 2007 (Volume 72, Number 178)]
[Proposed Rules]
[Page 52521-52527]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14se07-17]
[[Page 52521]]
=======================================================================
-----------------------------------------------------------------------
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: Proposed rule
-----------------------------------------------------------------------
SUMMARY: Pursuant to section 5333(b) of the Federal transit law, the
Department of Labor (Department) must certify, as a condition of
certain grants of Federal financial assistance, fair and equitable
labor protective provisions to protect the interests of employees
affected by such Federal assistance.\1\ The Department administers this
program through guidelines set forth at 29 CFR part 215. The
Department's proposed changes conform the guidelines to recently
enacted federal legislation, in particular, sections 3013(h) and 3031
of the Safe, Accountable, Flexible, and Efficient Transportation Equity
Act--A Legacy for Users. In addition to changes mandated by statute,
the Department also proposes revisions to the guidelines that will
enhance the speed and efficiency of the Department's processing of
grant certifications. The proposed revisions to existing procedures for
processing grant applications under the Federal transit law are
intended to ensure timely certifications in a predictable manner, and
remain consistent with the transit law's statutory objectives.
---------------------------------------------------------------------------
\1\ See 49 U.S.C. 5333(b).
DATES: Comments on these proposed revisions to the guidelines must be
---------------------------------------------------------------------------
received on or before October 15, 2007.
ADDRESSES: You may submit comments, identified by RIN 1215-AB58, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Fax: (202) 693-1342.
Mail, Express Delivery, Hand Delivery, and Messenger Service:
Mailed or delivered comments should be addressed to Ann Comer, Chief,
Division of Statutory Programs, Office of Labor-Management Standards,
Employment Standards Administration, U.S. Department of Labor, 200
Constitution Avenue, NW., Room N-5112, Washington, DC 20210. Because
the Department continues to experience delays in U.S. mail delivery due
to the ongoing concerns involving toxic contamination of government
mail, you should take this into consideration when submitting comments
to ensure meeting submission deadlines. It is recommended that you
confirm receipt of your comments by contacting (202) 693-0126 (this is
not a toll-free number). Individuals with hearing impairments may call
(800) 877-8339 (TTY/TDD).
Docket Access: Electronic access to the docket and comments
received is available through the Federal eRulemaking Portal
(http://www.regulations.gov). Comments will also be available for public
inspection and copying during normal business hours in Room N-5112 at
the address below.
The Department invites written comments on these proposed
guidelines from members of the public. The proposed guidelines are
available on the Federal eRulemaking Portal at http://www.regulations.gov and
on the Web site maintained by the Office of Labor-Management Standards
(``OLMS'') at http://www.olms.dol.gov. Anyone who is unable to access
this information on the Internet can obtain copies by contacting the
Division of Statutory Programs, OLMS at OLMS-TransitGrant@dol.gov or by
calling (202) 693-0126 (this is not a toll-free number). Individuals
with hearing impairments may call (800) 877-8339 (TTY/TDD).
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., Washington, DC
20210, OLMS-TransitGrant@dol.gov, (202) 693-0126 (this is not a toll-
free number), or (800) 877-8399 (TTY/TDD). Because comments sent to the
docket are available for public inspection, the Department cautions
commenters against including in their comments personal information
such as social security numbers and birth dates.
SUPPLEMENTARY INFORMATION:
I. Background
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.
Federal transit grants requiring the Department's certification are
processed in accordance with published guidelines, 29 CFR part 215. In
most cases, the guidelines call for the Department to refer a pending
grant application to interested parties--recipients and representatives
of transit employees--to afford them an opportunity to provide their
views on substantive employee protections. The parties may object to
the proposed terms and conditions and, if the Department finds their
objections to be sufficient, they will be afforded an opportunity to
negotiate specified provisions. There are, however, exceptions to the
general rule requiring the referral of grant applications to the
parties for their consideration, and, as explained below, the Safe,
Accountable, Flexible, and Efficient Transportation Equity Act--A
Legacy for Users (Pub. L. 109-59, 119 Stat. 1144 (2005)) (SAFETEA-LU)
incorporates certain of those exceptions into the law.
SAFETEA-LU provides for the reauthorization of funds for Federal
aid to highways, highway safety programs, transit programs, and other
transportation-related programs and projects. In addition to the
funding reauthorization, SAFETEA-LU modifies or clarifies statutory
standards applicable to the Department's certification of employee
protections associated with transit grants. Consequently, the
Department proposes a number of revisions to its guidelines to conform
to the requirements of the statute. First, section 3031 of SAFETEA-LU
mandates that grant applications to purchase like-kind equipment or
facilities shall not be referred to parties for review. Second, section
3031 similarly excepts from the Department's referral requirement grant
[[Page 52522]]
amendments that do not materially revise or amend existing assistance
agreements. Third, section 3013(h) of SAFETEA-LU addresses the
processing of grants under 49 U.S.C. 5311, which applies to formula
grants for ``Other Than Urbanized'' transit operations.\2\ Labor
protections for ``Other Than Urbanized'' grants are currently approved
through application of a certified Special Warranty without referral to
the affected parties, and a transit grant recipient must accept the
certified arrangement as a condition of the grant. SAFETEA-LU codifies
this practice of non-referral.
---------------------------------------------------------------------------
\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
will generally be referred to throughout this document as the
``Other Than Urbanized'' program and not by its section number in
Title 49 of the U.S. code.
---------------------------------------------------------------------------
Another important provision of SAFETEA-LU addresses substantive
rights of parties should a dispute arise when a public transit
authority replaces one private transit bus service contractor with
another through competitive bidding. Section 3031 of SAFETEA-LU 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). SAFETEA-LU also specifies that, when making determinations
regarding the sufficiency of objections, the principles enunciated in
the Las Vegas decisions shall not serve as a basis for a party's
objection to employee protective arrangements. The Las Vegas decisions
involve a number of issues, but key to the new statutory provision are
those portions of the decisions that address assurances of employment
in the context of an acquisition. The decisions set forth criteria for
determining whether an acquisition has occurred, and conclude that
where an acquisition has occurred, only subsection 5333(b)(2)(D)
provides for assurances of employment. In cases where no acquisition
has occurred, subsections 5333(b)(2)(A) and (B) may provide the bases
for providing assurances of employment, if a right to such employment
is mandated by other sources, such as other laws, a collective
bargaining agreement, a personnel manual, other protective agreements,
or past practice. Because the Department's Guidelines are procedural in
nature, and do not encompass substantive principles governing the
adjudication of rights of parties, this provision of SAFETEA-LU will
not be reflected in the revisions of the Guidelines. Although not
incorporated in the Guidelines, the Department, of course, will adhere
to the statutory mandate of section 3031.
In addition to these statutorily mandated changes, the Department
proposes to revise certain existing procedures to improve
administrative efficiency and ensure that timely certifications are
issued in a predictable manner while still adhering to statutory
standards. First, the Department proposes the implementation of a
Unified Protective Arrangement (UPA) for new grants for both operating
and capital expenditures where the parties do not have a pre-existing
negotiated protective agreement or certain other protections explained
further below. Under the current guidelines, existing negotiated
protective agreements are applied to new grants. Where, however, no
such agreement exists, the Department proposes and certifies separate
standardized arrangements depending on whether the grant is for
operating or capital expenditures. This practice of implementing
separate arrangements depending on the nature of the grant expenditure
is not required by statute, and has led to a proliferation of
protective arrangements. Under the Department's proposal, the
Department will apply a Unified Protective Arrangement, which is
derived primarily from the Department's current Capital Arrangement, to
both capital and operating grants, with the exceptions explained below.
Second, the Department proposes to expedite processing of employee
protection certifications by applying a warranty arrangement to grants
for the Over-the-Road Bus Accessibility Program (OTRB).\3\ Presently, a
warranty certification process is used only for ``Other Than
Urbanized'' grants under the program established in 49 U.S.C. 5311, as
noted above. The Department initially applied the more extensive
referral procedure of 29 CFR 215.3(b) to the OTRB grants program, which
was established primarily to retrofit over-the-road buses to meet the
requirements of the Americans with Disabilities Act of 1990, 42 U.S.C.
12101, et seq. (ADA). However, this referral process was not required
under the Federal transit law.\4\ Moreover, based on the Department's
experience with the OTRB program, it is now clear that a warranty
process, which applies certified protections without referral, is a
suitable procedure for this program and will increase the timely
processing of the Department's certifications. The Department is
therefore proposing adoption of the warranty procedure for the OTRB
program.
---------------------------------------------------------------------------
\3\ The OTRB program was first established by Congress in
section 3038 of TEA-21, Pub. L. 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 OTRB program will be referred to as such
throughout this document, and not by reference to either its public
law number or to the historical note to section 5310 of title 49 of
the U.S. code.
\4\ See original 49 U.S.C. 5310(f) in Historical and Statutory
Notes following 49 U.S.C. 5310 (specifying that OTRB grants ``shall
be subject to all of the terms and conditions applicable to'' grants
under section 5311).
---------------------------------------------------------------------------
II. Revisions to Section 5333(b) Processing of Federal Transit Grants
A. Processing of Grant Applications To Replace Equipment or Facilities
of ``Like-Kind''
The Department proposes 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. Section 5333(b)(4) now explicitly 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 this provision creates
an exception to non-referral if the Department determines that the
grant application has a potential material effect on employees. To
conform the Guidelines to the statutory mandate, the proposed
guidelines, at section 215.3(a)(4)(iii), provide that employee
protections relating to grants funding equipment and/or facilities of
like-kind shall be certified without a referral, and the ``material
effect'' exception is deleted. Section 215.3(a)(4)(iii) further
addresses the terms the Department will apply in like-kind grant
applications. That section states that if the Department determines
that changed circumstances, which may include negotiated revisions to
previously certified agreements or modifications to State law, render
the previously certified arrangement insufficient to satisfy the
requirements of the statute, the Department will make minimally
necessary modifications to the
[[Page 52523]]
applicable protections to ensure statutory compliance.
B. Processing of Amendatory Grant Applications
The Department proposes 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. The guidelines have been revised to reflect this
requirement and to identify some types of grant amendments that will be
certified without referral. These include (1) administrative amendments
that modify or clarify in immaterial respects certain terms, conditions
or provisions of a previously certified grant without changing the
scope, amount or purpose of the grant; (2) grant amendments that do not
include an increase of more than 20 percent of the previously certified
total Federal grant amount, and do not add a new project activity; and
(3) Full Funding Grant Agreement (FFGA) Amendments to grants that
included the full budget and scope of activities for the project in a
grant previously certified by the Department.
The Department will continue to refer grant amendments to the
parties for review under the procedures set forth in section 215.3 in
those cases in which applications materially amend or revise a grant.
Finally, the Department's proposed guidelines include language
addressing budget revisions. The Federal Transit Administration permits
grant applicants to undertake certain limited changes without prior FTA
approval. In those situations the Department's prior certification of
the project funded under the existing assistance agreement will also be
applicable to any budget revisions. See 29 CFR 215.5.
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 for ``Other Than Urbanized'' areas, SAFETEA-
LU requires the use of a warranty as the sole mechanism for protections
to be applied to the small urban and rural grant program and eliminates
the Secretary of Labor's options to either waive the application of
section 5333(b) or to apply alternative comparable arrangements.
Section 3013(h) of SAFETEA-LU specifies that employee protections will
apply only ``if the Secretary of Labor utilizes a special warranty that
provides a fair and equitable arrangement to protect the interests of
employees.'' The procedures in this section will also apply to Over-
the-Road Bus grants, which are discussed in greater detail below in
subsection E.
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 several changes to the process
established in its Guidebook for the application of a warranty without
referral when processing small urban and rural grants. First, as
required under SAFETEA-LU, the Department will eliminate waivers and
procedures to request alternative comparable arrangements. Second, the
Department will eliminate the requirement that States or other
applicants provide the Department with letters of assurance indicating
that grant subrecipients have signed the Special Section 13(c)
Warranty, as was previously done for small urban and rural grants.
Instead, the Department will include a requirement in the new Special
Warranty Arrangement, which will be developed for application to the
Other Than Urbanized and OTRB programs, that the protective
arrangements are binding upon any subrecipients assisted under the
grant. Third, the Department will eliminate any need for unions to
request to become a party to the Special Warranty Arrangement in
connection with a specific grant by specifying in the warranty that any
labor organization representing transit employees in the service area
of the grant recipient(s) will be deemed a party to the arrangement.
Finally, the Department will no longer make findings of ``non-
compliance'' for States or other applicants under the Other Than
Urbanized program. The Special Warranty Arrangement will provide
dispute resolution procedures for resolution of any disputes concerning
the States' or other applicants' compliance with the requirements of
the warranty.
In addition to the modifications noted above, the Department
proposes in revised 215.7 to utilize the Special Warranty for grants
under the OTRB program, in addition to its current utilization of the
Special Warranty in the ``Other Than Urbanized'' program. The OTRB was
established primarily to retrofit over-the-road buses to meet the
requirements of the Americans with Disabilities Act of 1990, 42 U.S.C.
12101, et seq. (ADA). As a result, grants under this program routinely
involve equipment adaptations or, in some cases, training, and the
requests for funds have been very similar over time. Accordingly,
because the grants are routine and relatively undifferentiated,
standardized protections are more appropriate than project-specific
protections. In utilizing the Special Warranty in the OTRB program,
employee rights and interests will be continue to be protected, while
at the same time permitting enhanced program efficiencies.
The Department also intends to revise its internal operating
procedures when it utilizes the Special Warranty in both the OTRB and
``Other Than Urbanized'' programs. These new procedures require that
the current version of the Special Warranty Arrangement be included in
every contract of assistance between FTA and the applicant receiving
assistance for ``Other Than Urbanized'' or OTRB programs. The FTA will
notify the Department that it has funded ``Other Than Urbanized'' and
OTRB grants by transmitting information copies of the grant
applications to the Department upon award of the grant. The ``Other
Than Urbanized'' applications will include information identifying
labor organizations representing transit employees of each
subrecipient, the unions representing employees of other transit
providers in the service area, and a list of those other transit
providers. To facilitate inclusion of this information in the grant
application, a sample form will be posted on the OLMS Web site. The
Department will work with FTA to utilize this information to inform
labor organizations representing affected transportation employees of
OTRB grants and their rights under the Special Warranty Arrangement.
The OTRB applications will only need to include information identifying
the labor organizations representing employees of the grant
recipient(s). If necessary, the Department will use available
information or may contact the applicant to identify labor
organizations in the service area of OTRB grant recipients. These may
include a broad range of unions where charter services that operate
throughout the country receive assistance. These revised procedures
will be implemented because the Department's prior procedures were not
well understood by the regulated community, and permit a more
streamlined and certain manner by which to notify the parties of their
rights under the protective arrangement. The revised procedures will
assure that appropriate, legally-binding and legally-sufficient
protections are in place with
[[Page 52524]]
no diminution of statutory standards, while simultaneously advancing
administrative efficiency.
The Department intends to modify the Special Warranty Arrangement
to limit the Department's involvement as a claims arbitrator under the
Other Than Urbanized and OTRB programs. The Special Warranty will now
set out a process by which the parties will designate a neutral, third-
party arbitrator to resolve claims involving employees represented by a
union, in contrast to the current Special Section 13(c) Warranty that
requires the Secretary of Labor to act as the arbitrator ``in the event
[the parties] cannot agree upon such procedure.'' Because revisions to
the Special Warranty involve programmatic changes that are not within
the scope of this NPRM, which deals solely with revisions to the
Department's guidelines, specific revisions to the Special Warranty
will not be set out in detail here. However, the Department intends to
include in the Special Warranty an arbitration process similar to that
set out in paragraph 15 of the National Model Agreement, which can be
found on the Department's Web site at http://www.dol.gov/esa/regs/compliance/olms/agreement.htm.
The Department recognizes that a dispute
resolution mechanism, although not expressly required by the statute,
is essential to a fair and equitable protective arrangement. Private
arbitration of disputes over the interpretation, application and
enforcement of protective agreements has historically been the
preferred dispute resolution mechanism in protective arrangements, both
in transit employee protection as well as under other statutes
providing for rail labor protection. In addition, designation of a
Cabinet-level official as the responsible arbitrator, which is unique
in comparison to other statutory programs providing analogous employee
protections, has created an excessive burden on Departmental resources
during this period of increased fiscal restraint. For these reasons,
the Department will remove the Secretary as ``fallback'' arbitrator for
disputes arising under the Special Warranty and specify that parties to
claims disputes should employ arbitration by a neutral third party to
resolve those disputes.\5\ Employees not represented by a labor
organization will still be able to request that the Department resolve
claims involving the interpretation, application and enforcement of an
arrangement.
---------------------------------------------------------------------------
\5\ For similar reasons, the Department intends to modify its
standard certification letter that currently provides that the
Secretary will ``designate a neutral third party or appoint a staff
member to serve as arbitrator'' to resolve disputes by service area
employees over the interpretation, application and enforcement of
the terms of protective arrangements. In the future, the
Department's certification letters will reflect that in those cases
in which service area employees are represented by a labor
organization that is deemed to be a party to a protective
arrangement, the dispute resolution mechanism of that arrangement
will be applicable to those service area employees. In those cases
in which service area employees are not party to the protective
arrangement, the revised certification letter will now set out a
process by which the grant recipient and the service area employees
will designate a neutral, third-party arbitrator to resolve claims
of service area employees. Finally, as to claims by service area
employees not represented by a union, the certification letter will
state, as is current practice, that the Secretary may designate a
neutral third party or appoint a staff member to serve as
arbitrator.
---------------------------------------------------------------------------
The new Special Warranty Arrangement will also contain provisions
to ensure that employees are provided with appropriate notice that the
transit provider is the recipient of Federal transit assistance and has
agreed to the requirements of the Special Warranty Arrangement. As with
the revised Unified Protective Arrangement discussed below, the Special
Warranty Arrangement will be included on the Department's Web site and
may be updated from time to time to reflect developments in the
employee protection program. The latest version will, in each instance,
be incorporated by reference in the contract of assistance between the
FTA and any grant recipient.
D. Unified Protective Arrangement
The Department is proposing to amend section 215.3(b)(2) and (3) of
the guidelines to implement use of a unified protective arrangement
(UPA) for both operating and capital grants where there is no existing
appropriate negotiated protective agreement. The Department has
determined that the requirements of the statute will be satisfied
through the application of a single arrangement that applies for both
operating and capital assistance grants. The principal difference
between the current Operating and Capital Assistance Protective
Arrangements is the ``sole provider clause,'' which is currently
included only in the Operating Arrangement. When the Department
developed the Operating Arrangement, which was based on the National
(Model) Agreement negotiated between transit unions and operators, it
incorporated the sole-provider clause contained in the Model Agreement.
The sole provider clause was not included in the Department's Capital
Arrangement, because that arrangement was based on the Special
Warranty, which did not include the clause. The Department's inclusion
of the clause in its Operating Arrangement was not the product of
negotiations between the transit unions and operators, and is not
required in order to meet the requirements of the statute. Therefore,
under this proposal, the UPA will not contain a sole provider clause.
Moreover, application of a single unified document to future grants
will simplify the preparation of referrals, expedite processing of
grant applications, and continue to satisfy the requirements of the
statute.
In lieu of the multiple Operating and Capital Arrangements
certified since January 1996, a single UPA generally will be proposed
when certifying future grants. This will prevent the proliferation of
new protective arrangements each time a new union is recognized or
service is expanded to areas involving additional unions. 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 Unified Protective Arrangement will be applied to any
particular grant. The UPA certified for a grant will always reflect
current program policies and statutory standards applicable to grants,
and will be updated whenever necessary. This process remains consistent
with the intent of the Department's 1996 guidelines to preserve
existing negotiated protective agreements while providing a process in
which arrangements can be put in place quickly for new applicants or
subrecipients.
The Department proposes to revise section 215.3(b) to provide that
a UPA will be proposed for the protection of transit employees
represented by a union, except in those cases in which protective terms
set by other instruments are appropriate to the grant. Under those
exceptions, the Department will make a referral based on labor
protective provisions contained in (1) a signed negotiated protective
agreement or the National Model Agreement as subscribed to by unions
and grant recipients; (2) agreed-upon terms adopted by a state or local
government; (3) an arrangement that is based on an agreement by the
parties that resolves issues not addressed by the UPA; or (4) a
determination by the Department of disputed protections that are not
otherwise addressed in the UPA. In those cases in which unions and
grant recipients have previously agreed to modify a proposed protective
arrangement or the Department resolved disputed issues in a proposed
arrangement, and those same issues are
[[Page 52525]]
addressed in the UPA in a manner that is consistent with the prior
agreed-upon or determined arrangement, the Department will propose
application of the UPA to the project. If the parties' arrangement is
inconsistent with the UPA, but continues to satisfy the requirements of
the statute, the parties' arrangement will continue to be proposed for
new projects.
For example, assume that an applicant has a pending project
including both operating and capital assistance and is also a party to
an executed agreement with a union dated September 30, 1985, and
several Operating and Capital Assistance Protective Arrangements with
various other unions dated between January 29, 1996, when the new
process took effect, and September 30, 2005. Under the revised
procedures, the Department will propose certification of the
applicant's next pending grant on the basis of the September 30, 1985
Agreement for the union covered by that agreement; as to the other
unions, however, the Department will propose certification on the basis
of the current Unified Protective Arrangement instead of the provisions
in the numerous Operating and Capital Arrangements dated between 1996
and 2005.
Protections that are the product of negotiations often contain
provisions unique to the transit property involved. Such protections
may also include a provision allowing an additional local union to
become a party. Under the proposed procedures, the Department will
accommodate the wishes of the parties to employ such an existing
provision in its certification. As previously indicated, the Department
will also continue to apply certain existing protective terms certified
as a Departmental determination of issues in dispute where those issues
are not otherwise addressed in the current Unified Protective
Arrangement.
The UPA will be available on the OLMS Web site and may be updated
from time to time to reflect developments in the employee protective
program. The latest version will, in each instance, be incorporated by
reference in the contract of assistance between the FTA and the grant
applicant.
E. Exclusion of Over-the-Road Bus Accessibility Program From the
Department's Referral Process
The Department is proposing to amend section 215.3(a)(4) of the
guidelines to specify that OTRB grants will no longer be subject to its
referral process. The OTRB program was established in 1998 by TEA-21,
and intended primarily to retrofit over-the-road buses to meet the
requirements of the Americans with Disabilities Act of 1990, 42 U.S.C.
12101, et seq. (ADA). Section 3038 of TEA-21 stated that OTRB grants
``shall be subject to all of the terms and conditions applicable to
subrecipients'' of grants for the ``Other Than Urbanized'' program,
which requires no referral process. Although TEA-21 did not require use
of referral procedures for the certification of protections for Over-
the-Road Bus grants, the Department applied the established referral
procedure at the outset of the program. The Department's experience
with this program now suggests that it is appropriate to apply a
warranty arrangement, and eliminate the use of the referral process, as
originally contemplated by TEA-21. The Department has included
procedures for processing of OTRB grants in new section 215.7, which
also provides procedures to be followed for the Other Than Urbanized
program.
F. Administrative Changes
Several adjustments have been made to the guidelines to reflect
current administrative practices. First, the Department has eliminated
language contained in section 215.2 of the 1999 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 not
be engaged until the grant application reflects the actual project
activities to be undertaken. Also, section 215.6 has been revised to
further explain how interested parties may utilize the July 23, 1975
Model Agreement. In particular, section 215.6 now contains procedures,
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. In addition, section 215.8 will be
modified to add an e-mail address and correct the room number of the
Statutory Programs office. Finally, the text of section 5333(b) of the
Federal transit law, which is set out in its entirety in section 215.1
of the current Guidelines, has been removed from that section in the
proposed Guidelines so that modifications of the Guidelines will not be
necessary each time statutory changes are enacted.
III. Regulatory Procedures
Executive Order 12866
This proposed rule has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Department has determined that this notice of proposed rulemaking is
not a ``significant regulatory action'' under Executive Order 12866,
section 3(f), Regulatory Planning and Review. The Department has also
determined that this notice of proposed rulemaking 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
This proposed rule addresses the procedural steps for obtaining the
Department's certification that employee protective arrangements under
the Federal transit law are in place as required under SAFETEA-LU. The
amendment will not have a significant economic impact on a substantial
number of small entities. Therefore, a regulatory flexibility analysis
under the Regulatory Flexibility Act (5 U.S.C. 605(b)) is not required.
The Assistant Secretary for Employment Standards has certified this
conclusion to the Chief Counsel for Advocacy of the Small Business
Administration.
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
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-
[[Page 52526]]
based companies in domestic and export markets.
List of Subjects in 29 CFR Part 215
Grant administration; Grants--transportation; Labor-management
relations; Labor unions; Mass transportation.
In consideration of the foregoing, the Department of Labor, Office
of Labor-Management Standards, hereby proposes to amend part 215 of
title 29 of the Code of Federal Regulations as set forth below.
PART 215--GUIDELINES, SECTION 5333(b), FEDERAL TRANSIT LAW
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.
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]
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''.
4. Section 215.3 is amended as follows:
a. Revise paragraphs (a)(3), (a)(4), (b) introductory text, (b)(1),
and (2);
The revisions and additions 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 SIB
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 any necessary modifications to the existing
protections to ensure that the requirements of the statute are
satisfied.
(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) The Department's referral will be based on a single Unified
Protective Arrangement except in those cases in which the application
involves an applicant or subrecipient that has protective terms and
conditions, appropriate to the grant, 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 protective arrangement agreed to by the parties to resolve
issues not otherwise addressed by the Unified Protective Arrangement;
or
(iv) A determination of protective terms by the Department
involving issues not otherwise addressed by the Unified Protective
Arrangement.
Note to paragraphs (b)(1)(i) through (iv): In the above cases (i-
iv), the Department's referral will incorporate such protections as
appropriate.
(2) The terms and conditions of the Unified Protective Arrangement
shall be similar to those contained in the Department's Capital
Arrangement. The Capital Arrangement was derived from the Special
Section 13(c) Warranty initially developed and certified for the small
urban and rural program in 1979, which incorporates provisions of the
July 23, 1975 Model Agreement;
* * * * *
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 in immaterial respects 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. Grants
that do not materially amend existing grants of assistance include but
are not limited to:
(i) Administrative Amendments that modify or clarify in a purely
immaterial manner terms, conditions or provisions of a previously
certified grant;
(ii) Grant Amendments and Revised Grants that do not include a
total budget increase of more than 20 percent of the previously
certified Federal amount and do not add a new project activity; and
(iii) Full Funding Grant Agreement (FFGA) Amendments that included
the full budget and scope of activities for the project in a grant
previously certified by the Department.
(2) When an application amends a grant for which the Department has
previously certified fair and equitable arrangements in a manner that
materially changes or amends an existing grant of assistance, the
Department will refer and/or process the labor certification provisions
of the amended grant according to procedures specified under Sec. Sec.
215.3 and 215.4, as appropriate.
(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.
6. Section 215.6 is amended as follows:
[[Page 52527]]
a. Designate the existing text as paragraph (a) and remove
``(b)(3)(i)'' and add in its place ``(b)(2)'';
b. Add new paragraphs (b), (c), and (d) to read as follows:
Sec. 215.6 The Model Agreement.
(a) * * *
(b) A grant applicant that is an employer not initially a party to
the Model Agreement but seeking to use the Model Agreement as the basis
of the Department's certification may become party thereto by serving
written notice of its desire to do so upon the Secretary of Labor, the
American Public Transit Association, or its designee, and the unions
signatory to the Model Agreement, or their designee. In the event of
any objection to the addition of such employer as a signatory, then the
dispute as to whether such employer shall become a signatory shall be
determined by the Secretary of Labor.
(c) A labor organization that is the collective bargaining
representative of urban mass transportation employees in the service
area of a grant recipient but not initially a party to the Model
Agreement, and who may be affected by the assistance to the recipient,
may become a party to the Model Agreement by serving written notice of
its desire to do so upon the other union representatives of the
employees affected by the project, the recipient, and the Secretary of
Labor. In the event of any disagreement that such labor organization
should become a party to the Model Agreement, as applied to the
Project, then the dispute as to whether such labor organization shall
participate shall be determined by the Secretary of Labor.
(d) Any signatory employer may individually withdraw from the Model
Agreement by serving written notice of its intention to withdraw upon
the Secretary of Labor, the American Public Transit Association, or its
designee, and the unions signatory to the Model Agreement, or their
designee. Any labor organization may individually withdraw from the
Model Agreement by serving written notice of its intention to withdraw
upon the other union representatives of the employees affected by the
project, the recipient, and the Secretary of Labor. Written notice to
withdraw must be served one hundred twenty (120) days prior to October
1, which is the annual renewal date of the Model Agreement.
7. Section 215.7 is amended as follows:
a. Remove ``(b)(3)(ii)'' and add ``(b)(2)'' in its place;
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''.
c. Designate the existing text as paragraph (a) and add two
sentences to the end; and
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 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 transit employees of the
recipient.
(2) The Department will notify labor organizations representing
potentially affected transit employees of OTRB grants and inform them
of their rights under the Special Warranty Arrangement.
Sec. 215.8 [Amended]
8. Section 215.8 is amended as follows:
a. Remove ``Director,'' and add in its place ``Chief, Division
of'';
b. Remove ``Suite N5603,''; and
c. Add the phrase ``or e-mailed to OLMS-TransitGrant@dol.gov'' at
the end of the paragraph.
Victoria Lipnic,
Assistant Secretary for Employment Standards.
Donald Todd,
Deputy Assistant Secretary, Office of Labor-Management Standards.
[FR Doc. E7-18040 Filed 9-13-07; 8:45 am]
BILLING CODE 4510-CP-P
|