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Part V
Department of Labor
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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
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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.
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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
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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-20 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
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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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