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, 52521-52527 [E7-18040]

Agencies

• DEPARTMENT OF LABOR
• Office of Labor-Management Standards
• Labor-Management Standards Office

[Federal Register Volume 72, Number 178 (Friday, September 14, 2007)]
[Proposed Rules]
[Pages 52521-52527]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-18040]



[[Page 52521]]

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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: Proposed rule

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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.
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    \1\ See 49 U.S.C. 5333(b).

DATES: Comments on these proposed revisions to the guidelines must be 
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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: https://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 
(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 www.regulations.gov and 
on the Web site maintained by the Office of Labor-Management Standards 
(``OLMS'') at https://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.
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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 
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.
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    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.
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    \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).
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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 https://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.
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    \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.
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    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