[Federal Register Volume 64, Number 144 (Wednesday, July 28, 1999)]
[Rules and Regulations]
[Pages 40990-40995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19111]



[[Page 40989]]

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Part V





Department of Labor





_______________________________________________________________________



Office of Labor-Management Standards



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29 CFR Part 215



Amendment to Section 5333(b) Guidelines To Carry Out New Programs 
Authorized by the Transportation Equity Act for the 21st Century (TEA 
21); Final Rule

  Federal Register / Vol. 64, No. 144 / Wednesday, July 28, 1999 / 
Rules and Regulations  

[[Page 40990]]



DEPARTMENT OF LABOR

Office of Labor-Management Standards

29 CFR Part 215

RIN 1215-AB25


Amendment to Section 5333(b) Guidelines To Carry Out New Programs 
Authorized by the Transportation Equity Act for the 21st Century (TEA 
21)

AGENCY: Office of Labor-Management Standards, Labor.

ACTION: Final guidelines.

-----------------------------------------------------------------------

SUMMARY: The Department of Labor (the Department) is providing notice 
of an amendment to its procedural guidelines for certification of 
certain projects of the Department of Transportation, Federal Transit 
Administration (FTA), in satisfaction of the requirements of Title 49 
U.S.C., Chapter 53, Section 5333(b) (commonly referred to as ``Section 
13(c)''). This notice is necessitated by the introduction of three new 
programs under the Transportation Equity Act for the 21st Century (TEA-
21), and the need to identify appropriate procedures for the 
Department's required certification of employee protections in 
connection with these projects.
    The section 5333(b) guidelines, as amended, are reprinted in their 
entirety in this document for the convenience of the reader. These 
guidelines replace those currently published at 29 CFR part 215. For a 
discussion of issues raised during the comment process for the earlier 
guidelines, see the final guidelines published on December 7, 1995 (60 
FR 62964).

DATES: These guidelines become effective August 27, 1999.

FOR FURTHER INFORMATION CONTACT: Kelley Andrews, Director, Statutory 
Programs, U.S. Department of Labor, 200 Constitution Avenue, NW, Room 
N-5603, Washington, DC 20210; telephone (202) 693-0126; facsimile (202) 
693-1342.

SUPPLEMENTARY INFORMATION:

I. Background

    The Transportation Equity Act for the 21st Century (TEA-21), signed 
into law by President Clinton on June 9, 1998, provides for three new 
transportation programs which require employee protections under 
section 5333(b). These are the Job Access and Reverse Commute Program 
(section 3037), the Over-the-Road Bus Accessibility Program (section 
3038), and the State Infrastructure Bank Program (section 1511). As a 
condition of the release of Federal funds for these programs, 
applicants must comply with section 5333(b), administered under the 
Department's mass transit employee protection program. These employee 
protections include the preservation of rights, privileges, and 
benefits under existing collective bargaining agreements, 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 mass 
transportation systems, priority of reemployment, and paid training or 
retraining.
    For most mass transit programs funded by the FTA, the Department 
processes the employee protection certifications required under section 
5333(b) in accordance with procedural guidelines published at 29 CFR 
215.3. The Department does not apply these procedures to the processing 
of section 5310, Elderly and Handicapped grants which do not require 
section 5333(b) certification, or section 5311 Non-Urban formula grants 
which are specifically exempted from processing under the guidelines. 
Section 5311 grants are certified through the application of a warranty 
without referral to the affected parties. Other grants are certified 
following the referral procedures established in the guidelines 
affording the interested parties an opportunity to provide their views 
on substantive protections.
    The Department's Office of Labor-Management Standards' Notice of 
Proposed Rulemaking (NPRM), issued March 30, 1999 (64 FR 15276), 
proposed to amend the guidelines to identify the certification 
processes which will be applicable for the Job Access and Reverse 
Commute Program, the Over-the-Road Bus Accessibility Program, and the 
State Infrastructure Bank Program.
    Comments addressing the proposed modifications to the guidelines 
were submitted by six interested parties. The Department has carefully 
reviewed these comments in the context of the amended guidelines to 
ensure that the requirements of the statute continue to be satisfied 
and that the Department will meet its goal of providing efficient and 
predictable certification of employee protections. The Department's 
review of the interested parties' comments has not resulted in any 
changes to the proposed guideline amendments. However, the specific 
points raised by the parties are discussed in Section II, Summary and 
Discussion of Comments.
    Therefore, for the newly authorized programs under TEA-21, the 
Department will provide for processing as follows. For Job Access and 
Reverse Commute grants, the Department will differentiate between 
grants to applicants serving populations under 200,000 and those 
applicants serving populations of 200,000 or more. The Department will 
develop procedures and apply appropriate protections without a referral 
for ``under 200,000'' grants and will utilize the guidelines procedures 
for ``200,000 and over'' grants. For State Infrastructure Bank (SIB) 
activities, the Department will develop procedures and ensure that 
employees are appropriately protected without a referral for the 
initial capitalization of SIBs and will utilize the guidelines 
procedures for subsequent projects receiving assistance from the SIB. 
Finally, for the Over-the-Road Bus Accessibility Program, the 
Department will utilize the guidelines procedures.

II. Summary and Discussion of the Comments

    Six comments from various interested parties throughout the transit 
industry were submitted and considered.
    Comments were received from one public transit provider:

--New Jersey Transit Corporation

    Four labor organizations provided comments:

--Amalgamated Transit Union
--Transportation Trades Department, AFL-CIO
--Transportation-Communications International Union
--United Transportation Union

    Finally, one public transit association provided comments:

--American Public Transit Association

    The Department has carefully reviewed and considered all of the 
comments in developing these guidelines. The following provides a 
summary of the comments and the Department's response.

A. Job Access Certification Procedures for Applicants Serving 
Populations Under 200,000

    Two comments supported the Department's proposal not to apply the 
existing guidelines procedures for Job Access and Reverse Commute 
grants in areas under 200,000. However, they expressed disappointment 
that projects for grants to applicants serving populations of 200,000 
and over would be covered by the existing guidelines procedures. 
Concern was expressed that, because ``non-traditional transportation 
providers are going to be

[[Page 40991]]

involved, and given the unique types of transportation services to be 
funded under this new program, it is likely that grants will be subject 
to inordinate delays under the referral process.'' The Department, 
however, does not believe that such non-traditional providers will 
experience substantial delays under the certification procedures which 
were put in place in 1996. The Department's existing procedures provide 
for certifications to be issued within 60 days after referral of a 
grant application.
    Four comments opposed the Department's proposed procedures for 
processing Job Access and Reverse Commute grants for applicants serving 
populations under 200,000. One comment indicated that there was no 
basis in the statute or the legislative history to justify a warranty 
procedure for Job Access and Reverse Commute Program grants to 
applicants serving populations under 200,000. Another indicated that 
the Department's expectation that this program will have a greater 
impact on employees of larger transit systems does not justify its 
proposal not to apply the existing guidelines to grants serving 
populations under 200,000. It was suggested that the existing 
procedures should be applicable to the Job Access and Reverse Commute 
grants serving populations under 200,000 because ``the Department 
already acknowledges that the existing Section 13(c) guidelines are the 
appropriate means by which to certify employee protective terms for 
grants disbursed to urbanized areas with populations under 200,000 who 
receive ``pass-through'' funds from their respective states.''
    The Job Access program established under TEA-21 distinguishes 
between grants serving differing populations by requiring that 
Metropolitan Planning Organizations will select applicants in areas 
serving populations of 200,000 or greater, and the states will select 
applicants in areas with populations under 200,000. Section 3037(j) of 
TEA-21 specifies that ``[a] grant under this section shall be subject 
to . . . all of the terms and conditions to which a grant made under 
section 5307 of title 49, United States Code, is subject''. However, 
neither the statute nor the legislative history for the Job Access and 
Reverse Commute Program specify how such grants are to be processed. 
Therefore, the Department has flexibility to develop and implement 
procedures appropriate to carry out its section 5333(b) 
responsibilities. In addition, with regard to ``pass-through'' grants, 
the legislative history indicates that negotiations are the appropriate 
process for the development of protections for application to those 
grants.
    The Job Access and Reverse Commute grants serving populations under 
200,000 will have much in common with grants processed under the 
section 5311 small urban and rural transportation program. For example, 
both types of grants will be selected and administered through the 
States and many grants will be made to non-traditional transportation 
providers. Because grants serving populations of under 200,000 are less 
likely to interface with traditional transportation providers which 
tend to be represented by organized labor, the Department believes it 
is not necessary to use a referral process here. Accordingly, the 
Department believes there is adequate justification for utilizing a 
process which does not require a referral for certification of Job 
Access and Reverse Commute Program grants to applicants serving 
populations under 200,000. The Department will ensure that the 
protections applied to Job Access and Reverse Commute grants serving 
populations under 200,000 satisfy the requirements of section 5333(b).
    Several comments assumed that the Department would process Job 
Access and Reverse Commute grants for applicants serving populations 
under 200,000 using the warranty certification process applicable to 
non-urban formula grants. As noted in the NPRM, the Department intends 
to ``establish procedures similar to those for section 5311(f).'' 
(Emphasis added.) Another comment noted that ``the Department intends 
to apply as yet unspecified arrangement(s)'' but ``the proposed 
amendment to the Section 5333(b) guidelines fails to include any 
discussion and/or provisions prescribing how such an arrangement would 
be established.''
    The Department has the authority and responsibility to develop 
appropriate procedures and statutorily sufficient protective 
arrangements for the section 5333(b) certification program. These may 
need to be adjusted periodically to reflect developments in transit 
programs, including the Job Access and Reverse Commute program, or to 
formulate the necessary terms and conditions for specific projects. The 
Department must retain the flexibility to apply appropriate protections 
in the circumstances presented. Therefore, it is not appropriate to 
publish the protective arrangements which will be applied for grants 
under this program.
    The Department will establish appropriate procedures for processing 
of ``under 200,000'' Job Access and Reverse Commute grants similar to 
those for section 5311(f) grants, coordinating with the Federal Transit 
Administration on mass transit issues, issues relating to the interface 
of our procedures, and various issues relating to the applications 
themselves.

B. State Infrastructure Bank Certification Procedures

    One comment indicated that, in addition to the initial 
capitalization, the SIB program should be administered through ``more 
flexible and streamlined warranty procedures in lieu of the lengthy 
referral process'' for grants made subsequent to the initial 
capitalization. The Department, however, anticipates that many of the 
projects assisted by the SIBs will be similar to projects currently 
requiring certification under the existing guidelines procedures. 
Accordingly, the existing certification process is appropriate for SIB 
projects and it will not unduly burden the efficient delivery of 
program services.
    One comment indicated that the proposed guidelines did not make it 
sufficiently clear that transit projects receiving assistance 
subsequent to a SIB capitalization would be subject to the referral 
procedures under section 215.3. Another comment noted that the initial 
capitalization might also include specific projects which should be 
processed in accordance with the existing guidelines procedures. These 
comments suggested that the final guidelines be amended to address 
these issues. The Department, however, does not believe that such 
modifications are necessary. As drafted, the amended guidelines only 
exempt from the existing procedures those grants which capitalize SIB 
accounts. If a specific project were to be applied for at the same time 
as the capitalization grant, the Department would apply the 
certification procedures of the existing guidelines for that project.
    It was also suggested that the Department include in its guidelines 
``the procedures and/or standards to be applied for developing the 
`standard protections' for initial SIB capitalization grants where no 
specific projects are identified.'' As previously indicated, the 
Department has the authority and responsibility to develop appropriate 
procedures and statutorily sufficient protective arrangements, and 
these may need to be adjusted periodically to reflect developments in 
transit programs, including the SIB program. In order for the 
Department to retain the flexibility necessary in the circumstances 
presented, it is not appropriate to publish the specific language which 
will be applied for SIB

[[Page 40992]]

capitalization grants. The Department will certify initial 
capitalization grants made by FTA to the SIBs by specifying that the 
SIB may not release funds for specific projects in the absence of a 
subsequent certification for those projects.
    As with other programs, the Department will establish appropriate 
procedures for processing of SIB capitalization grants, coordinating 
with the Federal Transit Administration on issues relating to the 
interface of our procedures and various issues relating to the 
applications themselves.

C. Second and Subsequent Generations of Funds Under the State 
Infrastructure Bank Program

    One comment indicated that SIB ``funds are repaid to the state 
account from non-federal sources after their first use, which means the 
federal nexus becomes attenuated and there remains no real basis for 
ongoing application of federal DOL Guidelines--which at that point 
should no longer apply.'' Another comment, however, noted that 
``Section 1511(h)(2)(i)(2) [of TEA-21] mandates the application of 
Section 5333(b) requirements . . . to transit projects assisted by 
`repayments' to the SIB resulting from any financial transactions 
undertaken by the bank.'' That comment indicated that ``[t]he 
Department's final regulation should acknowledge and incorporate these 
obligations for so-called `second generation' grants to insure the 
proper application of transit employee protections to all transit 
projects assisted by an infrastructure bank.''
    TEA-21 does specify that ``[t]he requirements of titles 23 and 49, 
United States Code, shall apply to repayments from non-Federal sources 
to an infrastructure bank from projects assisted by the bank. Such a 
repayment shall be considered to be Federal funds.'' It is not 
necessary to modify the Department's proposed amendment to address 
either of these comments. The Department will include language in its 
certifications for the capitalization of SIBs which ensures that the 
requirements of TEA-21 with respect to second and subsequent 
generations of funds are appropriately satisfied.

D. Over-the-Road Bus Accessibility Program

    Two comments expressed support for the Department's proposed 
certification approach for processing grants under the Over-the-Road-
Bus Accessibility Program. Another comment, however, indicated that 
``the Secretary of Labor appears to have the authority to waive section 
5333(b) certification requirements'' for the program, and recommended 
that the final rule address this authority.
    In addressing the Over-the-Road-Bus Accessibility Program, section 
3038(f) of TEA-21 provides that ``[a] grant under this section shall be 
subject to all of the terms and conditions applicable to subrecipients 
who provide intercity bus transportation under section 5311(f) of title 
40, United States Code, and such other terms as the Secretary [of 
Transportation] may prescribe.'' This language establishes that the 
requirements of section 5333(b) must be applied for Over-the-Road-Bus 
Accessibility Program grants, but neither the statute nor the 
legislative history specify the procedures for processing these grants. 
Therefore, the Department has flexibility to develop and implement 
procedures appropriate to carry out its section 5333(b) 
responsibilities. Section 5311(j) provides that ``the Secretary of 
Labor may waive the application of section 5333(b)'' for projects under 
section 5311. However, the criteria for such a waiver requires that 
``there are no employees of the Recipient or of any other public 
transportation providers in the transportation service area of the 
Project who could be potentially affected.'' The Department believes it 
is unlikely that intercity bus services would meet that criteria. 
Therefore, the Department did not include waiver procedures for this 
program.

III. Regulatory Procedures

Executive Order

    This final rule has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Department has determined that this rule is not a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review. Accordingly, it does not require an 
assessment of potential costs and benefits under section 6(a)(3) of 
that order.

Regulatory Flexibility Act

    This final rule addresses the procedural steps for obtaining the 
Department's certification that employee protection arrangements under 
the Federal Transit law are in place as required for three new programs 
funded under TEA-21. 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 to this effect 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 information collection requirements for 
purposes of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

Small Business Regulatory Enforcement Fairness Act of 1996

    A. This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of the United States-based companies to 
compete with foreign-based companies in domestic and export markets.
    B. Consistent with the Small Business Regulatory Enforcement 
Fairness Act of 1996, the Department will submit to Congress a report 
regarding the issuance of today's final rule prior to the Effective 
Date set forth in the outset of this document. The report will note the 
Office of Management and Budget's determination that this rule does not 
constitute a ``major rule'' under that Act. 5 U.S.C. 801, 805.

List of Subjects in 29 CFR Part 215

    Grant administration; Grants--transportation; Labor-management 
relations; Labor unions; Mass transportation.

    Accordingly, Part 215 in Chapter II of Title 29 of the Code of 
Federal Regulations is amended by removing the last sentence in 
paragraph (a)(3) of Sec. 215.3, by adding a new paragraph (a)(4) in 
Sec. 215.3 to read as set forth below, and by revising Sec. 215.8 to 
read as set forth below. For the convenience of the reader, the entire 
part is being republished in full.

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PART 215--GUIDELINES, SECTION 5333(b), FEDERAL TRANSIT LAW

Sec.
215.1  Purpose.
215.2  General.
215.3  Employees represented by a labor organization.
215.4  Employees not represented by a labor organization.
215.5  Processing of amendatory applications.
215.6  The Model Agreement.
215.7  The Special Warranty
215.8  Department of Labor contact.

    Authority: Secretary's Order No. 5-96, 62 FR 107, January 2, 
1997.

PART 215--GUIDELINES, SECTION 5333(b), FEDERAL TRANSIT LAW


Sec. 215.1  Purpose.

    (a) 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.
    (b) Section 5333(b) of title 49 of the United States Code reads as 
follows:

    Employee protective arrangements.--(1) As a condition of 
financial assistance under sections 5307-5312, 5318(d), 5323(a)(1), 
(b), (d), and (e), 5328, 5337, and 5338(j)(5) of this title, the 
interests of employees affected by the assistance shall be protected 
under arrangements the Secretary of Labor concludes are fair and 
equitable. The agreement granting the assistance under sections 
5307-5312, 5318(d), 5323(a)(1), (b), (d), and (e), 5328, 5337, and 
5338(j)(5) shall specify the arrangements.
    (2) Arrangements under this subsection shall include provisions 
that may be necessary for--
    (A) the preservation of rights, privileges, and benefits 
(including continuation of pension rights and benefits) under 
existing collective bargaining agreements or otherwise;
    (B) the continuation of collective bargaining rights;
    (C) the protection of individual employees against a worsening 
of their positions related to employment;
    (D) assurances of employment to employees of acquired mass 
transportation systems;
    (E) assurances of priority of reemployment of employees whose 
employment is ended or who are laid off; and
    (F) paid training or retraining programs.
    (3) Arrangements under this subsection shall provide benefits at 
least equal to benefits established under section 11326 of this 
title.


Sec. 215.2  General.

    Upon receipt of copies of applications for Federal assistance 
subject to 49 U.S.C. 5333(b), together with a request for the 
certification of employee protective arrangements from the Department 
of Transportation, the Department of Labor will process those 
applications, which may be in either preliminary or final form. The 
Federal Transit Administration will provide the Department with the 
information necessary to enable the Department to certify the project.


Sec. 215.3  Employees represented by a labor organization.

    (a)(1) If affected employees are represented by a labor 
organization, it is expected that where appropriate, protective 
arrangements shall be the product of negotiation/discussion, pursuant 
to these guidelines.
    (2) In instances where states or political subdivisions are subject 
to legal restrictions on bargaining with employee organizations, the 
Department of Labor will utilize special procedures to satisfy the 
Federal statute in a manner which does not contravene state or local 
law. For example, employee protective terms and conditions, acceptable 
to both employee and applicant representatives, may be incorporated 
into a resolution adopted by the involved local government.
    (3) If an application involves a grant to a state administrative 
agency which will pass assistance through to subrecipients, the 
Department of Labor will refer and process each subrecipient's 
respective portion of the project in accordance with this section. If a 
state administrative agency has previously provided employee 
protections on behalf of subrecipients, the referral will be based on 
those terms and conditions.
    (4) These procedures are not applicable to grants under section 
5311; 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.
    (b) Upon receipt of an application involving affected employees 
represented by a labor organization, the Department of Labor will refer 
a copy of the application to that organization and notify the applicant 
of referral.
    (1) If an application involves only a capital grant for routine 
replacement of equipment of like kind and character and/or facilities 
of like kind and character, the procedural requirements set forth in 
paragraphs 215.3(b)(2) through 215.3(h) of these guidelines will not 
apply absent a potentially material effect on employees. Where no such 
effect is found, the Department of Labor will certify the application 
based on the terms and conditions as referenced in paragraphs 
215.3(b)(2) or 215.3(b)(3)(ii).
    (2) For applicants with previously certified arrangements, the 
referral will be based on those terms and conditions.
    (3) For new applicants and applicants for which previously 
certified arrangements are not appropriate to the current project, the 
referral will be based on appropriate terms and conditions specified by 
the Department of Labor, as follows:
    (i) For operating grants, the terms and conditions will be based on 
arrangements similar to those of the Model Agreement (referred to also 
as the National Agreement);
    (ii) For capital grants, the terms and conditions will be based on 
arrangements similar to those of the Special Warranty applied pursuant 
to section 5311.
    (c) Following referral and notification under paragraph (b) of this 
section, and subject to the exceptions defined in Sec. 215.5, parties 
will be expected to engage in good faith efforts to reach mutually 
acceptable protective arrangements through negotiation/discussion 
within the time frames designated under paragraphs (d) and (e) of this 
section.
    (d) As part of the Department of Labor's review of an application, 
a time schedule for case processing will be established by the 
Department of Labor and specified in its referral and notification 
letters under paragraph 215.3(b) or subsequent written communications 
to the parties.
    (1) Parties will be given fifteen (15) days from the date of the 
referral and notification letters to submit objections, if any, to the 
referred terms. The parties are encouraged to engage in negotiations/
discussions during this period with the aim of arriving at a mutually 
agreeable solution to objections any party has to the terms and 
conditions of the referral.
    (2) Within ten (10) days of the date for submitting objections, the 
Department of Labor will:
    (i) Determine whether the objections raised are sufficient; and
    (ii) Take one of the two steps described in paragraphs (d)(5) and 
(6) of this section, as appropriate.
    (3) The Department of Labor will consider an objection to be 
sufficient when:
    (i) The objection raises material issues that may require 
alternative employee protections under 49 U.S.C. 5333(b); or
    (ii) The objection concerns changes in legal or factual 
circumstances that may materially affect the rights or interests of 
employees.
    (4) The Department of Labor will consult with the Federal Transit

[[Page 40994]]

Administration for technical advice as to the validity of objections.
    (5) If the Department of Labor determines that there are no 
sufficient objections, the Department will issue its certification to 
the Federal Transit Administration.
    (6) If the Department of Labor determines that an objection is 
sufficient, the Department, as appropriate, will direct the parties to 
commence or continue negotiations/discussions, limited to issues that 
the Department deems appropriate and limited to a period not to exceed 
thirty (30) days. The parties will be expected to negotiate/discuss 
expeditiously and in good faith. The Department of Labor may provide 
mediation assistance during this period where appropriate. The parties 
may agree to waive any negotiations/discussions if the Department, 
after reviewing the objections, develops new terms and conditions 
acceptable to the parties. At the end of the designated negotiation/
discussion period, if all issues have not been resolved, each party 
must submit to the Department its final proposal and a statement 
describing the issues still in dispute.
    (7) The Department will issue a certification to the Federal 
Transit Administration within five (5) days after the end of the 
negotiation/discussion period designated under paragraph (d)(6) of this 
section. The certification will be based on terms and conditions agreed 
to by the parties that the Department concludes meet the requirements 
of 49 U.S.C. 5333(b). To the extent that no agreement has been reached, 
the certification will be based on terms and conditions determined by 
the Department which are no less protective than the terms and 
conditions included in the referral pursuant to Secs. 215.3(b)(2) and 
215.3(b)(3).
    (8) Notwithstanding that a certification has been issued to the 
Federal Transit Administration pursuant to paragraph (d)(7) of this 
section, no action may be taken which would result in irreparable harm 
to employees if such action concerns matters subject to the steps set 
forth in paragraph (e) of this section.
    (e) If the certification referred to in paragraph (d)(7) of this 
section is not based on full mutual agreement of the parties, the 
Department of Labor will take the following steps to resolve 
outstanding differences:
    (1) The Department will set a schedule that provides for final 
resolution of the disputed issue(s) within sixty (60) days of the 
certification referred to in paragraph (d)(7) of this section.
    (2) Within ten (10) days of the issuance of the certification 
referred to in paragraph (d)(7) of this section, and after reviewing 
the parties' descriptions of the disputed issues, the Department will 
define the issues still in dispute and set a schedule for final 
resolution of all such issues.
    (3) The Department may establish a briefing schedule, usually 
allowing no more than twenty (20) days for opening briefs and no more 
than ten (10) days for reply briefs, when the Department deems reply 
briefs to be beneficial. In either event, the Department will issue a 
final certification to the Federal Transit Administration no later than 
thirty (30) days after the last briefs are due.
    (4) The Department of Labor will decide the manner in which the 
dispute will be resolved. In making this decision, the Department may 
consider the form(s) of dispute resolution employed by the parties in 
their previous dealings as well as various forms of third party dispute 
resolution that may be appropriate. Any dispute resolution proceedings 
will normally be expected to commence within thirty (30) days of the 
certification referred to in paragraph (d)(7) of this section, and the 
Department will render a final determination, including the bases 
therefor, within thirty (30) days of the commencement of the 
proceedings.
    (5) The Department will make available final decisions it renders 
on disputed issues.
    (f) Nothing in these guidelines restricts the parties from 
continuing to negotiate/discuss over final terms and conditions and 
seeking a final certification of an agreement that meets the 
requirements of the Act prior to the issuance of a final determination 
by the Department.
    (g) If, subsequent to the issuance of the certification referred to 
in paragraph (d)(7) of this section, the parties reach an agreement on 
one or more disputed issues that meets the requirements of the Act, 
and/or the Department of Labor issues a final decision containing 
revised terms and conditions, the Department will take appropriate 
steps to substitute the new terms and conditions for those previously 
certified to the Federal Transit Administration.
    (h) Notwithstanding the foregoing, the Department retains the right 
to withhold certification where circumstances inconsistent with the 
statute so warrant until such circumstances have been resolved.


Sec. 215.4  Employees not represented by a labor organization.

    (a) The certification made by the Department of Labor will afford 
the same level of protection to those employees who are not represented 
by labor organizations.
    (b) If there is no labor organization representing employees, the 
Department of Labor will set forth the protective terms and conditions 
in the letter of certification.


Sec. 215.5  Processing of amendatory applications.

    When an application is supplemental to or revises or amends in 
immaterial respects an application for which the Department of Labor 
has already certified that fair and equitable arrangements have been 
made to protect the interests of mass transit employees affected by the 
subject project the Department of Labor will on its own initiative 
apply to the supplemental or other amendatory application the same 
terms and conditions as were certified for the subject project as 
originally constituted. The Department of Labor's processing of these 
applications will be expedited.


Sec. 215.6  The Model Agreement.

    The Model (or National) Agreement mentioned in paragraph (b)(3)(i) 
of Sec. 215.3 refers to the agreement executed on July 23, 1975 by 
representatives of the American Public Transit Association and the 
Amalgamated Transit Union and Transport Workers Union of America and on 
July 31, 1975 by representatives of the Railway Labor Executives' 
Association, Brotherhood of Locomotive Engineers, Brotherhood of 
Railway and Airline Clerks and International Association of Machinists 
and Aerospace Workers. The agreement is intended to serve as a ready-
made employee protective arrangement for adoption by local parties in 
specific operating assistance project situations. The Department has 
determined that this agreement provides fair and equitable arrangements 
to protect the interests of employees in general purpose operating 
assistance project situations and meets the requirements of 49 U.S.C. 
5333(b).


Sec. 215.7  The Special Warranty.

    The Special Warranty mentioned in paragraph (b)(3)(ii) of 
Sec. 215.3 refers to the protective arrangements developed for 
application to the small urban and rural program under section 5311 of 
the Federal Transit statute. The warranty arrangement represents the 
understandings of the Department of Labor and the Department of

[[Page 40995]]

Transportation, reached in May 1979, with respect to the protections to 
be applied for such grants. The Special Warranty provides fair and 
equitable arrangements to protect the interests of employees and meets 
the requirements of 49 U.S.C. 5333(b).


Sec. 215.8  Department of Labor contact.

    Questions concerning the subject matter covered by this part should 
be addressed to Director, Statutory Programs, U.S. Department of Labor, 
Suite N5603, 200 Constitution Avenue, N.W., Washington, DC 20210; phone 
number 202-693-0126.

    Signed at Washington, DC this 21st day of July, 1999.
Bernard E. Anderson,
Assistant Secretary for Employment Standards.
[FR Doc. 99-19111 Filed 7-27-99; 8:45 am]
BILLING CODE 4510-27-P