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

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.

[[Page 40993]]

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